10 Barriers to Settlement in Mediation or Litigation of Family Law cases

A compromise is the art of dividing a cake in such a way that everyone believes he has the biggest piece.
  - Ludwig Erhard

[Erhard is a cynic, and I think he's wrong. You get what you expect.   KK]

Recently, I had the privilege of talking with two warriors on the front lines of family conflict: a marriage and family pastor at Gateway Church in Frisco, and Kevin Fuller, Board Certified Family Law attorney, talented mediator, and highly regarded advocate for collaborative divorce in Dallas. Both expressed the recognition of the same problem: growing numbers of people, who reluctantly divorce, don't want to engage in high-conflict traditional litigation, nor try the new-fangled collaborative divorce, even with its promise of "no going to court". Both of these men recognized the need for mediation before lawyers get involved, and Fuller has begun to offer "parties only" mediation to some of his inquiring clients. We all agreed that there is a need for a way to resolve, not exacerbate, family disputes and find workable solutions the issues inherent in dissolving a marriage without fracturing the family. 

Our discussions inevitably turned to the frustrations of trying to walk our clients through the process of divorce, property division, financial support for spouses and children, and conservatorship and visitation plans while the wounds of divorce are still bleeding. These conversations prompted me to consider the barriers to reaching agreements in these very trying circumstances. 

Here's my "Top 10 List of Barriers to Reaching Agreement":

1, Lack of a shared vision for the future. Most people have not considered, and find it hard to consider, what their lives will look like after smoke clears and to develop a reasonable plan to make it happen. Couple with children need to have a shared vision for the future of their children and their mutual part in that future, so that they can work TOGETHER to make it happen. Without that shared vision, self protection and "me-first" drive the problem solving process into a ditch.

2. Anger and the desire to retaliate. The most prominent anchor to the past is anger and retaliation. As one recently collaboratively divorced client put it "You have to give up the hope for a better past". While anger and hurt and the desire for revenge is understandable, when it persists, at high levels, it becomes a barrier to solving problems and reaching agreements.

3. John Gottman's divorce research identified "personal attacks on the character" of the spouse as one factor predicting inevitable divorce. Once the decision to divorce as been made and the legal process started, those same personal attacks can de-rail progress toward resolution. Legal process doesn't mitigate those attacks, generally the increased stress raises the frequency and intensity of those attacks.

4. Another anchor in the past which interferes with problem solving in the present and a plan for the future is un-forgiveness. No person gets to the decision that divorce is the best option without hurting their spouse in some way, and no spouse can reasonably claim that they have no responsibility for the relationship failing. Multitudes of sages have written that holding a grudge poisons the person who hangs on to the offense, and it frequently interferes with logical decision making in divorce negotiations.

5. Fear and anxiety can seriously impair logical thinking and rational planning. Some people who are mildly anxious before divorce begins become panic stricken during the process. Fearful spouses develop new fears during this period. The catastrophic thinking that may accompany these fears and anxieties can so restrict the perceptions of people that they literally see the world through a straw, as their brain literally narrows its focus to try to protect them against information overload. When you can only see one option, and it looks like doomsday, compromise is impossible.

6. Empathy failures and contempt. Contempt is another one of Gottman's factors that predict divorce. The inability to put oneself in the other person's shoes, difficult for many in the best of times, frequently disappears during the pain of divorce. If contempt (the opposite of empathy) was present before and contributed to the breakup, the eye rolling and mocking is only exaggerated during divorce. It's hard to give in and work with someone whom you don't respect and don't value at all. New research suggest that narcissists, who are prone to contempt of their partners during divorce, have the ability to turn empathy off and on; just reminding them to turn it on is sometimes enough too get a change of attitude and behavior that can lead to resolution.

7. Lack of expressed gratitude for the other spouse's contributions to the marriage relationship. 70-80 per cent of divorces occur in low conflict couples, and the spouse report that they just "drifted apart" and the marriage "died". This decreasing intimacy also reflects another of Gottman's findings; in failing marriages the ratio of positive to negative interactions falls to a ratio of 1 to 1. (In healthy relationships, the ratio is 20 to 1). In order to rebuild a "devitalized" relationship enough to work together to end it, both parties need to be able to express genuine appreciation for the real, positive contributions of their soon to be former spouse.

8. Failure to take any personal responsibility for the current difficulties that are interfering with reaching a resolution. Once again, since productive problem solving requires a focus on the present and the future, when any these emotional barriers to agreement that I have enumerated arise (and nearly all of them do at some point), further progress is stymied unless BOTH parties can acknowledge their own (not their partner's) challenges and struggles. 

9. Hopelessness and depression can make a good resolution appear to be impossible. Feelings of despair, sadness, and even symptoms of depression do occur with regularity during the process of divorcing. For most people, either because of effective treatment or just emotional resilience, these symptoms are not debilitating. However, for a significant minority of divorcing women AND men, depression and the hopeless outlook that goes with it, can interfere with rational thinking and problem solving. Fortunately, current treatments are more than 85% effective in alleviating depression.

10. Kevin Fuller helped me with this last category of barriers to successful agreement, and I have labeled it "cognitive impairments". This category of extremely challenging behaviors includes untreated substance abuse and it's accompanying cognitive disabilities, untreated serious and persistent mental illness (bipolar disorder, schizophrenia) and the thinking difficulties that are inherent to those illnesses, and untreated personality disorders like anti-social personality disorder (the "just plain mean and disagreeable" folks) and the borderline personality sufferers who are stuck in rigid "black and white" thinking patterns. 

The good news is that NONE of these barriers to successful resolution are insurmountable, and there are strategies and tools for removing them or working around them to reach a mutually satisfactory settlement agreement. The bad news is: it takes time, skills, and patience. More about that in the next post.

And no, Mr. Erhard, you don't have to manipulate people into believing that they "got the biggest piece of the cake". In fact, real agreements are the opposite of that cynical view of settlement--a fully informed, mutually agreed upon plan for the present and the future that both parties embrace, because they made it happen themselves. As my contracts prof used to say "a true meeting of the minds".

It's summer vacation/extended summer visitation time again; sexual abuse allegations revisited

In Texas, many divorced parents have mixed feelings about summer vacation. Most standard custody orders give the parent who doesn't have "primary possession" of the child(ren) 42 days of visitation during the summer. This means that the parent with primary possession gets an extended break from parenting responsibilities and the other parent gets a chance to spend some quality time with the kids when they aren't in school. Theoretically, it's a win-win.

Unfortunately, for a small group of parents, summer vacation means extended visitation for the children in an environment that is not only not stable, but sometimes is actually harmful to the kids. When the former spouse who is not the parent with primary possession, there is usually a good reason, especially if the arrangement was the result of litigation rather than friendly agreement. When the dad has primary possession (still a rare occurrence), and mom is the one with visitation, the risks of extended summer visitation to the kids is greater than normal.

This small group of moms who don't have primary possession of their children usually (not always) have found themselves in this position because they have one or more of these challenges that they haven't been able to overcome: histories and current unstable or abusive relationships, untreated depression, anxiety, or substance abuse, and/or severe personality disorders like borderline personality disorder or antisocial/narcissistic personality disorder. These issues represent a risk because they are nearly always accompanied by very low empathy for the kids and a pathological level of self-absorption and denial that can be dangerous.

The typical pattern for this group of unstable moms is a repetition of a life-long pattern: impulsive commitment to a relationship with a man who is both charming and abusive. If that man also has children from a previous relationship, the potential for a chaotic home environment is multiplied since HE is unlikely to be primary possessory parent, and HIS kids are also likely to be with him for extended periods of time in the summer. Most of these families are middle class at best, meaning that both parents probably work full-time, leaving the kids to supervise themselves for long periods of time. This lack of constant adult supervision during the day is a recipe for major chaos, and dramatically increases the risks for bullying by step-siblings, and even abuse, physical or sexual.

So what is a concerned parent to do?

1. Maintain contact with your kids--a daily phone call to say good night is good for them and for you.
2. When they get home, listen to the stories they tell, but don't interrogate your kids.
3. Watch for changes in their behavior: increased aggressiveness, anxiety, sadness or withdrawal, or regression to more dependent or infantile behavior that can be symptoms of stress.
4. When your kids spontaneously report episodes of abuse, take action.

• Consult a mental health professional to get some objective analysis of your concerns.
• If it sounds like abuse, report it to CPS.
• If there are bruises or other injuries, get them treated; take photos.
• Call a family law specialist and get some advice about what your options are for protecting your kids.

Most kids enjoy having extended summer visitation with the non-custodial parent and everybody benefits from the change in routine. But if you're a parent in the high risk category I described, don't be afraid, but do be alert.

For more information and tips about divorce:

Dr. Karlson's latest book "When ALL Else Fails: Minimizing the Damage Before, During, and After Divorce is available on Amazon and Kindle. Here's the link:
http://tinyurl.com/qzlndut

Positive Mental Health: What is it? The Glass is Half Full

I recently applied to be considered for the position of President of the Meadows Foundation Mental Health Institute in Dallas. As a part my due diligence in the application process, I had a very illuminating conversation with Dr. Lynda Foster of the Hogg Foundation for Mental Health, a highly regarded agency which advocates for better mental health care and provides funds for research, policy development, and treatment programs in Texas. Despite the name of the Foundation, it occurred to me afterward, our entire discussion was about "mental illness" not "mental health".

This  revelation follows on the heels of an invited speech I recently gave to Contact Dallas at the urging of Amy Stewart where I talked about "Characteristics of Healthy Leaders", a speech I repeated to the North Dallas Bar in June.  The "top 10 list" (my apologies to David Letterman) of things that healthy leaders do actually applies to everyone, not just leaders, so I decided to include it here as well.

So here it is, my list of top 10 characteristics of mentally healthy people:

1. Healthy people can identify and articulate their own feelings.

• Daniel Goleman (the Emotional Intelligence guy) and a host of others now recognize that this one of the most important abilities of a successful person. 
• fMRI research has revealed that once a feeling is labeled with a word, the chaos in the brain ceases and order is restored; centers of the brain which generate logical, focused, problem solving can begin to operate.

2. Healthy people make time to be alone.

• They make room in their schedules for quiet time every day.
• They consciously contemplate the Divine (pray or meditate)
• They take a sabbatical (not a vacation) regularly

3. Healthy people have a personal vision, mission, and purpose for their lives.

• Vision creates hope that lasts through crises
• Purpose is a reason for being beyond roles and making money.
• Together, these create meaning.
• Dr. Martin Seligman talks about 5 factors critical to flourishing (PERMA):
• Positive emotion
• Engagement
• Relationships
• Meaning
• Accomplishment

4. Healthy people serve others.

• Service (outside of work) provides big picture perspective.
• Research in 131 countries found that people experience a sense of well being from giving that exceeds that from receiving.

5. Healthy people have friends who care about them.

• Relationships are a protection against depression, anxiety, aging, and illness.
• Being able to ACCEPT help from a close friend is a strong measure of mental health.

6.  Healthy people make music a part of their lives.

• Research proves that music stimulates the brain in ways that nothing else can.
• "Music gives a soul to the universe, wings to the mind, flight to the imagination, and life to everything" Plato (I am listening to music as I write this)

7. Healthy people learn continuously.

• Neuroscience research has demonstrated that new learning creates new growth of neurons in the brain; the "trees" in your brain add new branches when you learn something new.
• Healthy people consciously add new skills to their "bucket list" and then learn how to do them throughout life.

8. Healthy people stay active.

• Walk, run, dance, golf, whatever... healthy people do something active every day.
• Their is no "mind-body" dichotomy; physical activity is critical to mental health.

9. Healthy people have fun.

• Benefits of laughter are well documented by neuroscience research: it increases dopamine (the feel-good neurotransmitter), decreases cortisol (the stress neurotransmitter), and improves overall health.

10. Healthy people are positive and grateful; grateful people are healthy.

• Gratitude is a choice; healthy people have learned it.
• Gratitude inoculates against depression and anxiety
• Gratitude is contagious

A quick exercise from Dr. Seligman to increase your mental health:

1. Every day, write down 3 good things that happened to you, and 

2. What made them good.

This simple exercise has proven to increase feelings of well-being 3 months after doing it for only a week! Healthy people make gratitude a part of their everyday life. Try it!

Be sure to check out my latest book, now available on Amazon and Kindle. When ALL Else Fails: Minimizing the Damage, Before, During, and After Divorce is filled with tips and tools when you are trying to decide what to do and how to do it.

Here's the link to Amazon:http://tinyurl.com/qzlndut

BEFORE DIVORCE TOOLS: HOW EXPERTS PREDICT WHETHER A COUPLE WILL DIVORCE

Note: This is an excerpt from the book "When ALL Else Fails: Minimizing the Damage, Before, During, and After Divorce" by Kevin Karlson JD PhD available now on Amazon and Kindle.


Getting divorced just because you don't love a man is almost as silly as getting married just because you do.    Zsa Zsa Gabor

If you are thinking about divorce but are unsure about whether to do it
or not, this may help you decide. Dr. John Gottman, founder of the
Gottman Institute in Seattle, has emerged as a leading expert in the
understanding of marriage dynamics and in predicting divorce. After
more than 25 years of research and therapy with married and divorcing
couples, a number of basic patterns in how married couples interact can
be used to predict divorce (in the absence of change in these patterns).

First, there are two periods in married life when the risk of divorce is
higher:

 After 5-7 years of marriage when conflict is usually highest.

 After 10-12 years of marriage, as a result of lost intimacy.

It should be noted that marital conflict often increases when a baby
arrives, which usually happens during the first few years of marriage
(see bullet one above).

After the first child is born, 40 to 70% of couples
report significant declines in satisfaction with their marriage. So, a
period of marital dissatisfaction is the norm after the first child is born,
and in the absence of malignant interaction patterns, does NOT
necessarily lead to divorce . (Remember, most unhappiness is
temporary.)

The process that leads to loss of intimacy takes longer to result in
divorce, and research has identified the malignant interaction patterns
that DO predict divorce. These are:

 A one to one ratio between positive and negative interactions
(for happy couples the ratio of positive to negative interactions is
20 to 1).

 Mutual criticism (personal attacks on character, NOT
complaints about specific behavior).

 Defensiveness (“no I didn’t”, “yes but…”, “let’s talk about what
YOU did…” or other denials of any personal responsibility).

 Stonewalling (refusing to talk in order to avoid conflict).

 Contempt for the partner (eye rolling, sarcastic humor,
mocking).

Of the last four factors, those Gottman called the “four horsemen” (of
the Apocalypse), contempt is the worst, and most damaging to
marriages.

Here are some other findings from the research on marriage:

 Conventional wisdom says it is not a good idea to “go to bed
angry”. Gottman discovered that “flooding” – a physiological
phenomenon triggered by emotional conflict — leaves people’s
heart rates too high for them to think clearly and concentrate
on the conversation at hand. He found that taking the time to
calm down before finishing an angry conversation is more likely
to help couples stay close and connected. So take a time out,
and if it’s late, agree to start over in the morning.

 From the research on domestic violence, we have learned that
couples therapy with battering couples actually makes things
worse for the woman—not better—another significant
departure from the conventional wisdom. Partners need to get
individual therapy.

The Bottom Line

If your relationship is not overwhelmingly positive in your pattern of
interactions with your partner, but rather is characterized by Gottman’s
“four horsemen” of criticism, defensiveness, stonewalling, and
especially contempt, your odds of being divorced are more than four
out of five within five years. 

If you want to stay married, you both need to change the way you
interact. When marriages fail, both parties contribute to the failure.
Take responsibility for your contribution and get help. That means
getting professional help for both of you. Do it now.

Divorce Through the Eyes of a Child: Development Begins for 1/2 hour reality TV show

Nearly 1 in 3 children of divorce haven't seen their fathers in the past year. Divorce Through the Eyes of a Child is a pilot for a 1/2 hour reality TV program which will allow these fatherless kids and their moms to tell their stories, using both the words and the drawings of the children, and interviews with their moms.

In order to fund this important project, we have launched a fundraising campaign on Rocket hub. If you have a heart for these kids of divorce with no dads, as I do, then please join us and help us tell their stories. Here's the link:

Updated and Re-Titled: When ALL Else Fails-Minimizing the Damage Before, During, and After Divorce is now available

Happy Monday,

I am pleased to announce that my book "When ALL Else Fails-Minimizing the Damage Before, During, and After Divorce"  is now available on Amazon and Kindle. Here is the link: http://tinyurl.com/qzlndut 

I continue to welcome referrals for trial preparation/consultation cases in family law and commercial litigation and post divorce coaching.

Thanks for your continued support.