My last post talked about one of the highly valuable services that I, or any skilled and experienced collaborative attorney, provide to a client; namely, helping them understand the conceptual agreements they reach at the kitchen table. I want to cover another of the highest value services that I provide to clients in a collaborative process: Preventing old relational dynamics from undermining a settlement. It has been said that the definition of insanity is doing the same thing over and over while expecting a different result. While it is a bit simplistic, it highlights the idea that if a dynamic has not worked in the past, then it is unlikely to work in the present or future. Every couple has established relational dynamics. This includes the way they speak to each other, interpret each other’s statements, assumptions they make about each other, and expectations they have for each other’s behavior, among others. However, from my perspective, the most important relational dynamic in divorce is the way a couple handles conflict with each other. Some couples simply don’t talk about conflicts. Some confront it immediately, head-on, with volume. Sometimes one person wants to confront it head-on and the other wants to avoid it and hope it goes away. There are almost as many dynamics for handling conflict as there are couples. Some are quite helpful and productive, but many are counterproductive. It is often true that the way a couple handled conflict during the marriage played a significant role in the breakdown of the marriage. And yet, couples frequently want to conduct their divorce negotiation using the same dynamics that got them to the divorce. It makes sense; these dynamics are deeply rooted and highly ingrained. They are very difficult to escape because they feel “natural” and even, ironically, comfortable in some ways. And yet these dynamics can and do torpedo rational settlement conversations before they have a chance to gain traction. Even if they don’t prevent a settlement they unnecessarily prolong the negotiations and multiply the costs of the divorce if not managed effectively. Fortunately, there are attorneys specifically trained to help clients manage these dynamics. Collaborative attorneys have unique skills to identify counterproductive dynamics and then mitigate them so clients don’t spend unnecessary time and expense getting hung up in old patterns. These techniques start with training in how to listen to clients and their spouses. Once a pattern presents itself collaborative attorneys can help short circuit the pattern and adopt a new dynamic before frustration, deadlock, and the dreaded “Battle of Wills” set in. This ability to identify and mitigate counterproductive dynamics between divorcing spouses is perhaps the key to the effectiveness of the Collaborative Divorce process. Having skilled attorneys who can see the dynamic objectively and short circuit it saves precious time and money for clients. Without attorneys that can do this, the old dynamics lead to increased anger, frustration, suspicion, and mushroom-cloud conflict. That, in turn, leads to skyrocketing legal fees, animosity, and delays. While it may be hard to see from the inside, the conflict dynamics that you and your spouse have used in the past may not serve you well in your divorce. Understanding that and hiring an attorney that is trained to identify and handle those dynamics will save you untold time and money.
Most of us have heard of the “fight, flight, or freeze” responses that we are pre-programmed to experience in the face of a threat. This is often attributed to the “reptilian” part of our brain or the part of our brains that evolved first and have the oldest programming.
Many people experience the news of divorce as a huge threat, if not an existential threat. So, it is only natural that an impending separation or divorce would trigger our reptilian brains and cause us to respond with a fight, flight, or freeze response.
The problem is that reptiles have really bad divorces. (If you can find one that had a reasonable divorce, I’d love to hear about it).
Engaging in a fight, flight, or freeze response upon learning that your spouse is considering ending the marriage prevents you from doing the most important thing you can do at that moment: Think.
Some people choose to fight immediately. This looks like someone seeking out the “toughest”, “meanest”, most “aggressive” divorce lawyer they can find. This move is protective in some ways, but also frequently leads to highly adversarial and needlessly expensive wars. The fight responses is often a self-fulfilling prophecy. You think there is going to be a fight, so you create one.
The flight response is no better. Some people simply avoid the situation and reality of what is happening. They refuse to engage an attorney or discuss things with their spouse. They simply try to pretend that it is not happening. This also leads to needless cost and fighting because their spouse has no choice but to ask a court to intervene when someone refuses to engage in the divorce process. The court is the only thing that can force someone to engage, or at least impose a high price for non-engagement.
Freezing is also a bad plan. Things begin to happen legally, financially, and practically when separation and divorce are on the horizon. If you cannot actively participate and shape those events then you may suffer negative consequences for a long time.
So, what is better than following our reptilian brain down one of these counterproductive paths? I believe that the best first move is to educate yourself. That does not have to mean talking to an attorney immediately. But, it should mean doing some research into your divorce process options, including negotiation, mediation, collaborative divorce, and even litigation. You can choose from many methods and processes to resolve your divorce issues. It is not a one size fits all area of the law. But, you should know which processes are a good fit for you, your spouse, your family, your resources, and your goals. A good lawyer can help you identify your goals, educate you about different methods, and help analyze what process is the best fit for you and your situation without pressuring you into the one they prefer.
Everyone will likely have some form of the fight, flight, or freeze response to the news of a divorce. It is only natural. But, that is not the part of your brain that should be making decisions in these important moments. The key to making sure the more evolved parts of your brain are in charge is to educate yourself on your options as quickly as you can.
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.
“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.
Divorce involves loss. That is an inescapable reality of the changes that come with the end of a marriage.
Human nature is to weigh losses heavier than gains. We have a natural psychological tendency to focus on what we may lose, as opposed to what we stand to gain.
But, when assessing your divorce options, it makes sense to not just think about losses that may be realized, but also think about losses that may be avoided.
When weighing and considering the outcome of your divorce, in addition to whatever you feel you may have gained or lost, the losses avoided must be given significant weight as well. The amount of loss in your divorce is largely up to you and your spouse. Some loss is unavoidable: the cost of two homes is higher than for one, future plans may change, a parent may have less overall time to spend with children when parents live in two homes. But, there are many losses that can be avoided if a divorce is handled well. Legal fees can be held in check, the familial relationships can be salvaged, disruptions to children’s lives can be minimized, time lost at work and the impact on careers can be minimized, church and community families can be maintained, homes can be saved, traditions maintained; the list goes on.
Another way of saying this is that whatever may be lost in a divorce, things are also saved. The question for anyone facing a divorce is what do you want to save and how can you save it? How can you save as many of the good things as possible?
If you find yourself facing the prospect of a separation and divorce, you will automatically think of the losses that you fear coming. But it is also wise to think of the losses that can be avoided, and how you can best avoid them. In my experience, perhaps the biggest difference between a “good” divorce and a “bad” divorce is that the good divorces avoid far more losses, and save more of the good things than the bad ones.
The best way that I know to avoid unnecessary losses in divorce is to manage conflict instead of fueling it, to refrain from emotional behaviors instead of giving in to the urge, to jointly problem solve instead of blaming, threatening and manipulating, to retain your decision making authority instead of handing it over to the government, and to jointly work to insulate and nurture your children instead of fighting over them like property.
That is not easy, and it may not be for every client and family. But it is possible, and in my practice, it is the rule instead of the exception. All it takes are two clients who are committed to avoiding unnecessary losses, attorneys who know how to help them, and a well-designed process.
This Tedx video by David Hoffman explains why I do what I do at least as well or better than I can. It is powerful for me and hopefully for others. And, I think it explains the intellectual, professional and emotional journey for those layers who have chosen to be peace makers. Enjoy.
What does it mean to be tough? In divorce, most people (including many lawyers) believe that it means “sticking to your guns”, never compromising, issuing the bigger threats, puffing more, “big talk”, using intimidation. In the name of toughness, people are frequently encouraged to be uncaring, to deny any empathy for their spouse, and to turn off all humane or positive feelings about their marriage and their spouse.
That’s one way to do it.