Legal Resolution v. Conflict Resolution

I expect that any experienced attorney, and especially any experienced divorce attorney, has experienced the difference between resolving the legal issues in a case and resolving the conflict in a case.

There is a big difference.  

There are many family law cases in which a judge enters an order resolving the legal issues in a case, only to see that same family over and over again year after year.  Each time that family appears the judge resolves the legal issue at issue and sends them away, only to have them re-appear again with some new (or not so new) legal issue. (These are the most lucrative clients for a family law attorney, by the way). 

The reason for this revolving door on the courthouse is that while the legal issues in the case get resolved, the conflict does not.  And in family law, it is the conflict that births the legal issues, not the other way around.  However, the way the legal issues are handled often fuels the conflict, which in turn fuels more legal issues. It becomes a feedback loop.

This is perhaps the biggest limitation of the legal system when it comes to family conflict and divorce.   A judge can issue orders to fill several court files, but the judge is almost powerless to resolve the underlying conflicts that fuel the legal issues.  Judges can and do order family therapy in some cases to try to address the deeper dynamics at the root of the problem.  But, that is not the norm, and it frequently comes so late in the game that real change is difficult.

To get to the root of the problem the conflict between parents or spouses needs to be addressed.  Legal issues and problems are symptoms of the conflict.  A judge can treat the symptoms, but it takes skilled lawyers and other professionals to work on a cure.  

The legal profession as a whole, in my experience, has been narrowly focused on treating symptoms for family law clients instead of working on the root causes.  In some ways that makes sense; lawyers are trained from law school through their early years of legal work to learn how to deal with legal problems.  They are not trained to deal with anything deeper than the legal issue involved.  And many lawyers have no desire to look behind the legal issues to the root of the conflict.  It may come as a surprise that many lawyers, including family lawyers, are not comfortable with the emotions that are behind the curtain and don’t possess the skills to effectively handle them. 

To be fair, some clients who hire a family law attorney have no interest in looking at the conflict either, and only want an attorney that will get the best legal outcome possible, regardless of collateral damage, or the feedback loop.  Those attorneys don’t have the opportunity to address the conflict if their clients are not interested or able.

But, in my experience, most clients are open to addressing the actual conflict if they are shown in the early stages how that conflict is fueling the legal issues and that addressing the conflict will likely reduce or eliminate future legal problems.  It is not easy or fun.  It certainly takes maturity and self-discipline.  But it is possible and it is possible in many more cases than it is offered.

If you are facing a divorce or family law issues, give some thought to whether you prefer to address a string of legal issues for years, or address the conflict upfront to avoid a string of legal issues for years.  And find an attorney that is willing and able to help you do that.  

Proxies in Negotiation

When involved in a divorce negotiation people frequently use terms of the negotiation as proxies for measuring deeper issues and needs that they are afraid to talk about. 

For example, some clients see time with the kids as a proxy of how much they are valued as a parent or how good a parent the other person thinks they are.  Some see the amount of spousal support or the division of marital assets as a proxy for how much their contribution to the marriage was or is valued by their spouse.  

These proxies are ever present.  And they are very tricky. They are tricky because the proxies are often inaccurate, and they are being used differently by each party. 

For example, money may mean acknowledgement of the value of raising kids to one spouse, but not the other.  Time with the kids may represent an acknowledgement of equal parenting skill for one parent, but not have that meaning for the other.  When this is the case and it is not revealed, the parties often are missing the point of what the other is saying. 

It becomes easy to see how this creates a lot of the conflict, tension, miscommunication, and misundertanding in a divorce negotiation.  Understanding these proxies is the point of “mining for interests” that collaborative attorneys are trained to discuss with clients.  Good collaborative attorneys can uncover these proxies and then help the clients see them.  One of the tricky parts of divorce or any human conflict is that our proxies often obscure our actual deeper concerns even from ourselves. But once uncovered we can find solutions that address the actual needs, instead of just arguing about the proxies.  This uncovering of proxies and problem solving around underlying needs for both parties may be the heart of what makes a collaborative attorney and the collaborative process different than an adversarial attorney and process. Some collaborative professionals even refer to this process of breaking down these proxies as identifying the “conversation that we’re not having” or the “conversation that we need to have” to highlight that the deeper, obscured, and often unspoken needs of the parties are really driving the conflict, not the surface proxy issues.

Time with the kids is about actual time with the kids, but it is often about other things as well.  Money is about paying the bills, but it is often about other things as well.  We need to understand what those “other things” are, so we can help address them, whether with the concrete things like time and money or with less concrete things like expressions of gratitude, expressions of value as a parent, or acknowledgement of a spouse’s contributions to the life that the family built.  

Sometimes for clients the negotiation of a divorce is actually emotionally about trying to redress the hurtful dynamics of the marriage after the fact. Some clients are trying to “fix” in divorce what they didn’t like about the marriage. In this dynamic, time with kids and money become a means of measuring gratitude, contrition, absolution, forgiveness, recognition, value and many other feelings that the parties do not feel were sufficient in the marriage. 

There is no divorce process that can promise that old hurts from the marriage will be resolved or that all of the deeper needs of the clients will be met.  But, in the intimacy of a divorce negotiation, identifying those proxies and the associated deeper issues is often the only way to remove them as barriers to a successful resolution of a divorce.  Until they are uncovered and addressed, these deeper needs often serve as hidden barriers to resolution. This technique of getting to the heart of the matter instead of misguided arguing about proxies typically makes for more efficient, less drawn out, and therefore less expensive divorce negotiations in the collaborative process. 

If you would rather efficiently address the heart of the matter in your divorce negotiation instead of just arguing about proxies, then consider the collaborative divorce process.

A Legal Definition for Emojis?

In yet another example of society outpacing the law, the courts are being asked to interpret what emojis mean, legally.  

As a person who has experienced some emoji confusion myself, I can see this being yet another giant question mark in divorce and family law cases (yet another question that has to be answered with “it depends”).  (Sadly, I thought the steam emoji meant anger until I read this article.  Don’t tell my wife or kids how lame I am). 

As the article points out, each emoji has a cultural significance, and even subcultures within subcultures can interpret them differently. 

This is a morass for judges (and therefore lawyers) of every age, but as mentioned in the article, especially for the older judges that did not grow up using emojis (or cell phones or text messages for that matter).  

As a half joking, half serious question, are we going to need interpreters for emojis at some point? 

Some other questions that come to mind: Am I going to have to buy a new Black’s Law Dictionary for the first time ever because they define emojis?  Will the emojis go at the beginning of the dictionary or the end?  In an appendix?  Are lawyers going to be allowed or banned from communicating with each via emojis?  

The issue can have serious repercussions in family cases, especially domestic violence and child custody cases where issues of threats, insults, degradation, and tone of communication can make all of the difference in a judge’s eyes.  How many judges are prepared to read that tone accurately?

I’m not aware of any North Carolina cases that have tackled emojis in general, or specific emojis and their meaning.  But, at some point, it is going to happen.  And the ramifications will be fascinating.

 

The Downside of Marriage?

As a society and culture, most of us view marriage as an unqualified positive.  A hard thing.  But a positive and beneficial thing.

This article from The Atlantic explores what people may be giving up when they get married.  These losses can include extended support networks and opportunities to grow your other relationships and resources.  These are not a necessary result of marriage, but as the article argues, they are frequent results.

The article touches on several points that I find fascinating, from the impact of same-sex marriage on the couples’ activity level in the LGBTQ community, to the pressure put on marriage by the loss of external support systems, to the potential benefits of marriage alternatives, to the question of whether marriage or stability is best for kids (and are they the same thing?).  

I read a fair number of articles on family, culture, and society and this is one of the most thought-provoking I’ve read in a long while.  I hope you find it useful as well. 

Are Your Rights the Right Perspective?

One of the first things that come to mind for anyone when they realize that they are going to be divorced is “What are my rights?”.

Typically what people mean is “What laws can I use to impose my will on the outcome?”  That is a smart and reasonable question.

However, it is seldom the most important question.  Rights are essentially laws that you can seek to utilize to help achieve your desired outcome.  But, they are just one tool that can be used to achieve an outcome, and they frequently come with unintended and unwanted consequences.

For example, each parent has the right to file a custody action and ask for sole primary and physical custody of a child.  The problem with that is that in most North Carolina cases neither parent is going to be given sole legal or physical custody of a child.  And, the government has now been invited into your family and will assume control of key aspects of how you parent your child. Another common example:  You have the right to refuse to take your kids to activities that interfere with your time.  But, that may have negative consequences for your child. 

In a similar vein, you may have the right to own half of a business, but if that change of ownership leads to the destruction of the business, you may lose the benefit of the income that business provides.

The point is that the outcomes that result from exercising every right you have may not be your best outcomes.

Instead, the more productive focus is what’s in your best interest?  It may be that exercising some of your rights and choosing to not exercise others actually leads to a better outcome for you. If you are so focused on “your rights” that you lose sight of other options, then you lose out on outcomes that may serve you better. 

Knowing your legal rights is certainly a necessary part of making an educated decision in divorce.  But, making those rights the sole focus of your efforts is not necessarily going to produce your best outcome. 

Great Expectations

Clients frequently ask me in a first consult how long a collaborative divorce process takes. And I spend a lot of time thinking about what makes cases so different and why some move faster than others. One of the biggest variables I’ve found is the set of expectations that clients bring into a case. Some clients bring in very few expectations about the end result. Some bring in great expectations about the ultimate outcome. In my experience, clients have more efficient, faster, and less expensive processes when neither party brings unrealistic or rigid expectations to a divorce process. The reason is that an attorney has to spend a lot of time managing these expectations and working to create the flexibility and open-mindedness that produce the best and most efficient results.  I can’t tell you how many times I’ve heard the phrase “managing client expectations” in seminars for family law attorneys. The truth is that in all but the most extreme cases neither party can impose results or outcomes on the other, even (and maybe especially) in court. The vast majority of divorce and family law matters are resolved by mutual agreement. And mutual agreement obviously does not involve imposing outcomes on one another. To be clear, expectations are different than hopes, concerns, and goals. Hopes, concerns, and goals are helpful and necessary for identifying what is important to a client. Rigid expectations are counterproductive because they reduce the ability to think creatively, brainstorm possible solutions, and work collaboratively to find the best solutions. Expectations often cause people to “anchor” on a particular strategy or outcome and develop tunnel vision. That causes people to miss important, beneficial, and helpful alternatives. So, if you are seeking the most efficient, productive, and beneficial divorce negotiation process, then challenge yourself to avoid overly rigid or unrealistic expectations in the beginning. It will save you time, money, and stress in finding your family’s new path.

Divorcing Without Losing Your Communities

One of the saddest, but most common losses in divorce occurs when one or both spouses lose their communities as a result of the divorce (perhaps even sadder is when divorce causes children to lose their communities, but that is another story for another day).  

These communities are diverse and take many forms.  They are neighborhoods, social friendships, church families, extended families, work families, and in-laws among others.  These communities can even be clients, referral sources, and other networks that are foundational to your livelihood.

We are all familiar with this, having either been the divorcing spouse feeling shunned or anxious about how those communities will receive us. Or, as the community member unsure of what to say, whether to reach out or how to navigate the waters of someone else’s divorce. 

The question is how to prevent it.  The answer lies largely in how the spouses handle their divorce.

In general, the less conflict involved in a divorce, the fewer community relationships suffer. Just as children are highly sensitive to the conflict in their family, communities are highly sensitive to conflict among its members.

Every divorce has conflict.  For that matter, every happy marriage has conflict.  The difference is that in cases where communities are lost, the conflict has spilled over to community members. A spouse is sharing negative information about the other with the community.  Conflict erupts into arguments in front of friends or family.  In seeking support from their communities, spouses sometimes “poison the well” for the other spouse, intentionally or not.  

When conflict spills over to the community, the community rarely knows how to react appropriately.  Most communities are not trained to manage that conflict.  They don’t know how to support both spouses without shunning either of them. 

The best way that I know to get through a divorce without losing your communities is to adopt a divorce process that can contain the conflict so that it does not spill over into other areas of your life.  

While all divorce processes have pros and cons, some are designed to contain conflict, while others are designed (intentionally or not) to intensify conflict. For example, court processes are designed to contain conflict in the sense that it substitutes for vigilante justice. But an adversarial court process is not designed to avoid collateral damage to your communities.  In fact, your communities are often dragged into court as witnesses. Mediation is designed to contain conflict before it spills over to trial. But mediation is most often highly leveraged based on strong-arm tactics, increasing the odds that the conflict spills over into communities, even if it avoids more courtroom time. 

The best process for containing conflict, and preventing it from costing you your communities in divorce is the Collaborative Process.  There are many reasons, but they all come back to the fact that experienced collaborative attorneys are extensively trained and committed to handle conflict, even highly emotional conflict, productively, by de-escalating it and channeling that energy it into problem-solving without becoming adversarial with each other or the clients.

If you are facing a divorce, then give some thought to preserving your communities, and how to do that.  Give some thought to the collaborative process.

 

Ugly Divorces Affect Us All

Ugly divorces hurt us all.  Resolving divorce and family law matters in a non-adversarial process benefits us all.

The destructive effects of an ugly divorce almost always reverberate throughout a community.  They can destroy friendships, parent and child relationships, extended family relationships, and even church affiliations.  Ugly divorces can destroy families forever.  Teachers, therapists, clergy, co-workers, friends, and family can become involved whether they asked to or not.  They can be required to miss days of work and pay when they are hauled into court or a lawyer’s office to testify.  They can spend hours on the phone helping someone through the latest crisis or battle. None of these people want to be involved in someone else’s ugly divorce. 

The kids, the couples’ creditors, and family members who may be called on to foot the legal bills feel the financial devastation of expensive divorce.  Some couples never recover financially.  The costs of adversarial divorces consume retirement accounts, home equity, and college funds. Ugly divorces have pushed more than one couple into bankruptcy. 

Further, our courts are greatly overburdened by needless lawsuits.  The system simply cannot keep up.  The Wake County Family Court is drowning in cases filed by people who have already been to court multiple times.  These people are filing “show-cause” actions to continue their fight well after a judge has decided their legal issues.  It has become so bad that that Wake County Family Court has instituted a mandatory mediation program for show-cause actions in an effort to reduce the backlog.  Because the court system is financially stretched to the limit, these mediators work for free.  Cases that can be resolved in other avenues clog the system and consume the court’s resources.

If more of the resolvable cases were settled prior to a lawsuit, the court would require less personnel and fewer resources.  Given that our tax dollars largely pay for our courts, that would help us all.   If nothing else, the court would use the same personnel and resources to process cases faster and more effectively.

Further, we would all enjoy a better court system if we reserved the courts for the matters that truly needed the enormous resources that the court system burns.  If the resolvable cases were removed from the courts, then the truly unresolvable matters could be heard and decided much faster than they are today.  Due to the backlog of cases, it can take years for a case to be heard.  Court calendars on any given day are usually filled with two to ten times the number of cases that the court can hear in a day.  It is typical for a Wake County Family Court Calendar to have 50 hours of cases scheduled for 6.5 hours of actual “on the record” time per day.

Removing cases that do not actually need to be addressed by a judge allows a court to swiftly and efficiently decide the rare but important unresolvable cases for the rest of us. 

Plus, wouldn’t we all be happier if there was less jury duty to go around?

The bottom line is that it is up to us (the public and attorneys), not the government, to exercise better judgment about how we use our courts.  There are so many excellent processes for resolving disputes without the courts that only the rare dispute truly needs to be brought in court.  Whether through Collaborative Law, mediation, arbitration, neutral evaluation or some other dispute resolution process, we would all benefit from resolving our family law disputes, as well as other disputes, outside of the courtroom.

Real Life Recipe for Co-Parenting Success

Recipe BoxYears ago, we had a friend and neighbor that had the best co-parenting relationship with an ex-spouse that I’d ever seen.  Her husband frequently spent the night at her house to watch their daughter when she had to be out of town.  I never heard a cross word between them, and they had nothing but good things to say about each other in the presence of others.

After observing how well they co-parented for a year or so, I finally asked her how they did it.  How did they create such an incredible relationship to co-parent their daughter after a (not rainbows and unicorns) divorce?

Here is what she said:

There were actually a few rules we put into place early on that we both agreed to:

1) [Our daughter] comes first.  We came to realize eventually that it wasn’t about us anymore, it was about her.  Our feelings about each other were irrelevant; her feelings about us and herself were the most important thing.

2) Don’t talk about the other to [our daughter] and don’t allow family members to do so either.  We didn’t want her to have to figure out whether it was OK for her to love one of us if we hated each other.

3) We talked to each other almost every day after the separation and subsequent divorce because one of us would call [our daughter] to say goodnight.  I actually believe we worked through a great deal of the anger and the emotions by talking every day.  Even if it mainly consisted of conversations like ‘[our daughter] was sick today and stayed home from school.  When you pick her up later, she may need Motrin.’ We actually inadvertently worked through our own issues by focusing on [our daughter’s] well being.

I hated talking to him every day, oh by the way, that was one of the hardest things I did that first year, but [our daughter] was [young] and she needed us both, just like she does now.

I could talk about how impressive and healthy this is forever.  But, to me, the most important thing was that she hated talking to her ex, but did it every day for the benefit of her daughter.  She and her ex made it about their child, not because they didn’t have hard feelings, but despite those hard feelings.

Surely, their journey was more complex and more challenging that can be reflected in her few paragraphs of wisdom. But, hopefully, their blueprint helps you in your efforts to co-parent your children through a separation and divorce.

Why You Shouldn’t Let Your Attorney Take Over Your Divorce

“I hear and I forget.  I see and I remember.  I do and I understand.” – Confucius Divorce is often a confusing, anxious time.  People often report feeling as if they are the mercy of “the system”,  the law, their spouse, the attorneys, or the courts in their divorce.  This feeling of helplessness and loss of control only exacerbates the already difficult feelings of loss, grief, and worry that come with any divorce. Ironically, people frequently respond to these feelings by relinquishing more control and letting their attorneys and the courts take over their divorce process.  They are consulted periodically, but the attorneys handle the financial analysis, the negotiation, the strategic decision making and the other important parts of a divorce case.  The courts dictate the what, when and where. In my view, this is counterproductive because it only adds to the feelings of anxiety and loss of control.  It provides a short-term feeling of relief because it takes some things off of your plate in the short term. But, long-term, it leads to less satisfactory outcomes for clients.  First, when you are not involved in the details of your divorce process, then you are far less likely to like your outcome over time.  You will not remember the decision-making process that led you to your outcome.  That may cause you to look back on your process and your outcome with confusion and doubt.  Second, when you are intimately involved in your divorce process, you will have far more understanding of the financial, legal and personal dynamics at play in your divorce.  You will not have to take your attorney’s word for what is going on and the possible solutions.  Instead, you will be processing it as it happens and be involved in generating the solutions to the issues.  That typically means that you will have a fuller understanding of how and why you reached the solutions that will shape your post-divorce life.  In my experience that leads to clients feeling more in control, more satisfied, and less victimized after their divorce. Third, many clients grow frustrated because so much of the work an attorney does is outside of the presence of the client.  A client will get a bill, but not have actually seen the work performed because they are largely detached from the work itself. In a collaborative process, the client is sitting beside their attorney for much of the time and has immediate knowledge of what their attorney is doing and how they are doing it.  There is much less “mystery time” involved in your legal fees when you are an active participant in your case. Certainly, some cases require you to involve the courts and litigation attorneys.  And no one gets to dictate the terms of their divorce just as they would like. But, there are enormous benefits to being an active participant in, and having a thorough understanding of the decisions and the decision-making process of your divorce.  The only way that I know to do that is to participate in a divorce process that involves you not delegating the analysis, problem-solving and decision making, but rather taking an active role with your attorney in those facets.  You do, and you understand.