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".

Child Custody Evaluations: Solution or Contributing Cause to Ongoing Conflict?

When your only tool is a hammer, every problem looks like a nail.  Abraham Maslow


Family law professionals, especially family court judges, face difficult decisions every day. Among the most challenging are the high conflict custody cases where both parties are angry and intransigent, often trading explosive allegations about the other party's character and parenting flaws. Faced with these kinds of dilemmas, lawyers and judges search for an impartial third party to provide an "objective" perspective to help resolve the dispute and prevent further litigation and damage to the children. Frequently, this means turning to a mental health professional (almost always a psychologist) to conduct a "child custody evaluation" and report back to the court with a recommendation. I know, I have been one of those evaluators as a court appointed expert, and as a divorce litigation consultant, I have, until recently recommended child custody evaluations to my clients. No more.

Some background facts before I explain my rationale for my radical change of position.

• Only 30% of divorces occur in high conflict marriages--70% of all divorces are low conflict.
• Even with those numbers, 98-99% of divorces settle without a trial.
• Parents agree to custody arrangements on their own 90% of the time (Melton,  et al 2007)
• The latest census data finds that 78% of divorced children live primarily with their mother and 12% with their father. (Best available data on base rates for which parent ends up with "primary possession" after a divorce.)

Let's pause here for a minute. This means that, left to their own devices, most couples either agree to let mom have primary possession, or circumstances eventually evolve to mom having primary possession in 4 out of 5 divorces (they also agree to letting dad have primary possession in some cases). Regardless of the rhetoric about "equal rights" for dads, this is the reality, and since 90% of these arrangements are the result of agreements between the parents, it is hard to argue that the courts are driving primary possession by moms. Ok, but what about those high conflict cases that don't settle custody issues by agreement (including mediation)?

• Since low conflict (and even many high conflict) divorces settle without trial, that means the 1-2% of trial cases comes from the 30% of high conflict divorces, making the odds of trial in a high conflict case about 1 in 30 to 1 in 15, or 3-6%. 
• The best available research suggests that a child custody evaluations lack ANY scientific evidence for their validity or reliability  (Emery, Otto, and Donohue, 2005)
• There is NO psychological test that is a valid measure of "best interest of the children" nor to deciding the issue of either custody or possession.
• Nationally, the average cost of a custody evaluation is just under $4000 (in Dallas and surrounding counties in Texas, that number is at least twice that).
• The only long term studies of child custody evaluations (there are only 2) have found that child custody evaluations INCREASE the chances of later re-litigation by 2-3 times over those cases with no child custody evaluation! 

In my career as a divorce litigation consultant, I have had the opportunity to review hundreds of child custody evaluations. These reports range from 10-40 pages long, take anywhere from 15-40 hours of time to prepare, and cost many thousands of dollars. Most of them recommended "joint custody", and many of them recommended 50/50 possession or visitation. On it's face, recommending a joint custody in a high conflict divorce is absurd! The fact that the litigation has proceeded this far is proof that cooperation is unlikely without some intervention to resolve the underlying conflict between the parents. No child custody evaluation is needed to send parents off to counseling or parent facilitation.

There is NO scientific support or basis, based on psychological testing nor any scientific research, for those recommendations (or any other). None. And not one of those reports (including mine) ever mentioned that fact. We all pretend that we're being objective and scientific but in fact, in the absence of any scientific support for the process, the results are purely personal opinion driven by our own values and beliefs (or biases and prejudices) and dressed up in psychological terminology. Well intentioned opinion but mere personal opinion nonetheless.

Lawyers and judges seek child custody evaluations to help break the impasse in high conflict divorces where the parties cannot agree on child custody issues in hopes of avoiding litigation. Who can blame them? And it is true that in some cases, the child custody evaluation report which supports or fails to support the allegations of one parent or the other sometimes leads to a settlement in the short run. That's sort of a good thing. But remember, the goal of a child custody evaluation is to resolve the custody dispute.

The problem is, the underlying problem of ongoing parental conflict is NOT resolved in a child custody evaluation, and the only available scientific evidence suggests that the child custody evaluation made it worse not better since the EVALUATION process itself apparently increased the odds of re-litigating later by two to three times. If child custody litigation is viewed as an illness, and the prescribed treatment (a child custody evaluation) eliminates the symptoms in the short run but triples the odds of the disease returning in a few years, in any other field of medicine, the treatment would be taken off the market as ineffective and unreasonably dangerous!

As a professionally trained and former forensic psychologist and child custody evaluator,  (and co-author of a child custody evaluation system) it pains me to say this, but the available evidence suggests that child custody evaluations are part of the problem NOT part of the solution for high conflict divorces. The risks outweigh the benefits, and until that changes, the procedure needs to be taken off the market. 

I know both lawyers and judges as well as psychologists will disagree, but I challenge anyone to read this article and present a compelling counter argument...http://www.cstaffordlaw.com/Emery.pdf

Mediation Strategies--Making the First Offer--Don't Try to "Sell" It!

There's an opportune time to do things, a right time for everything on the earth: ... A right time to shut up and another to speak up...
Eccleciastes 3 from "The Message" by Eugene Peterson

A new study published in the Journal of Personality and Social Psychology strongly suggests that making too strong a case in presenting an opening offer in a negotiation is counter-productive. The study looked at negotiations where the parties made an opening offer with no explanation or persuasive argument and compared those negotiations to situations where the opening offer was accompanied by a persuasive argument in support of the terms being offered.

The study found that parties who made an opening offer without "selling" it ended the negotiations with results that were CLOSER to their opening offer than parties who made an offer and then tried to "sell it" to the other side. The explanation appears to be that "selling" the opening offer provokes counter-arguments by the other party and leads to counter-offers that are farther away from the opening offer than when the offer is presented without a sales pitch.

This study has significant implications in family law litigation and settlement negotiations. Both clients and attorneys would be well-served to leave the advocacy for another day when making an opening settlement offer. However difficult it might be to make the offer without a 'pitch', it is clear that restraint is going to save the client some money and get them more of what they want.

Bottom line: There is an opportune time for advocating, and opening negotiations is NOT it. When making an offer--leave the arguments for the courtroom and help your client get more of what they want.

Here's the reference for the research:

J Pers Soc Psychol. 2011 Aug;101(2):245-55.
Negotiation as a form of persuasion: Arguments in first offers.
Maaravi Y, Ganzach Y, Pazy A.
Source
Faculty of Management, Leon Recanati Graduate School of Business Administration, Tel Aviv University.

PMID: 21500924 [PubMed - in process]

Preparing to Mediate vs Preparing to Litigate- How Family Lawyers Can Use Client-Centered Strategies to Provide the Best Legal Representation

The cases are stereotyical: a successful middle aged man decides to divorce his wife of 20 plus years after a long period of acrimony and mutual animosity. Both spouses hire very competent lawyers and while the temporary support and financial issues are settled quickly, visitation for the children cannot be resolved, leading to temporary hearing. Following the hearing, discovery begins in earnest, and because of the custody/visitation issues and an exchange of inflammatory allegations, the parties' depositions are scheduled. Attorneys for both sides are surprised by what they find out during THEIR OWN client's depositions, and scramble to adjust to the "new facts" and prepare for mediation. The first mediation fails, as each side clings to unrealistic expectations and anger-driven rigidity and retaliation. In their candid and off the record discussions, attorneys for both parties agree that the case "needs to settle" but neither one can get the clients to do the right thing. Sound familiar?

The trend in family law litigation continues to move in the direction of fewer trials and more alternative dispute resolution, like mediation and, to some extent, collaborative divorce. This change away from litigation and trial preparation to mediation places family law attorneys under a new set of pressures early in the life of case: to discover both the strength and weaknesses of the client's case, to get the client to perform well in temporary hearings and depositions, and to uncover leverage points in the opposing party's positions prior to mediation in order to be in the strongest possible position at mediation. In other words, mandatory mediation policies have effectively "front-loaded" the case preparation tasks for family law attorneys, and created a greater sense of urgency for getting the "complete picture" sooner rather than later.

There are client-centered strategies available to manage these difficult and challenging cases. Here are a few of the strategies that have worked for my clients and their lawyers:

1. Take the time early in the case to get a complete history of the client, the client's spouse, the marriage, and each of the children. This interview should last 2-3 hours, and the goal is to get the client comfortable and talking, and let them "tell their story". Most clients expect that they will get a chance to "tell their side" in court (they won't, we all know) so this will be their one and only opportunity. Clients don't know what is legally relevant, but they will tell you all kinds of relevant facts, if given the chance. Most importantly, they will reveal the challenges and weaknesses in their own cases and minimize the surprises that can really hurt their cases later.

2. Emotional divorce and legal divorce proceed on entirely different timelines. When their is a conflict between the emotional divorce and the legal divorce--the emotional divorce ALWAYS trumps the legal divorce, and can stop the legal process in its tracks. When clients exhibit any of these characteristics, some kind of professional help is needed for the client ASAP: a hurt and angry wife still stunned by allegations of infidelity, a husband who describes his wife as an addict (food, drugs, shopping, alcohol), a wife who describes her husband as "abusive" and has been physically assaulted or emotionally beaten down, when either spouse is either a borderline personality disorder or narcissistic. Get professional consultation from a consulting expert about how to best support your client. Failure to address the emotional divorce factors is the greatest cause of mediation failures in my experience.

3. Take the time early in the case to explain in detail the litigation process, terms of art (motion, hearing, pleading, mediation, discovery etc.), and the sequence of events and a timeline. A typical divorce in North Texas takes 12-15 months, but most clients think tell me they think it will take about "6 months". This is just the first of the unrealistic expectations that clients have stuck in their heads, and managing and correcting these expectations is critical to maintaining the relationship with the client, and in making the process less stressful for client and attorney.

4. Before any hearing or deposition, take the time to teach your client how to be an effective witness, and the rehearse their testimony and cross examination with them. I have NEVER had a client tell me that rehearsing for their testimony in a temporary hearing or deposition was a waste of time--not one, not ever. Attorneys live in courtrooms and are comfortable there; clients are uniformly terrified, and consequently, without training and practice, are uniformly terrible witnesses. Clients not only willingly pay for time to prepare, they genuinely appreciate learning the rules and developing confidence to perform well.

5. Before mediation, explain the process to the client. Talk about the usual barriers to reaching an agreement, and have the client consider BEFOREHAND, and tell you in explicit detail, their bottom line position on all the custody and property issues. This will create an opportunity to manage the client's expectations, and prevent misunderstandings between attorney and client that can undermine successful mediation.

In summary, family law attorneys can provide the highest quality representation to their clients by recognizing that early, thorough, and considerate consultation which meets the CLIENT'S needs early in the divorce litigation process can make the entire experience less stressful for both attorney and client.

For more information or to arrange a consultation, call Dr. Karlson at 972.839.2394 or send email to karlson.kevin@gmail.com.