Can you come back from litigation, and mediate successfully?

October 18th, 2017

Highest conflict couple I think I have ever met with. Were they litigious, and went to attorneys who reflected where they were at? or did the attorneys make them more litigious? hard to know.

She was so angry she THREW a pad of paper across the room –with the most intense energy, as if she wanted to throw a boulder at his head.

Can they mediate?

They started their divorce process in a bad way – husband’s parents telling him “she might kidnap the kids and take them to Europe. (She’s from Europe, originally.) You should take the children’s passports, and change the life insurance while you’re at it,” which he did. Injecting fear and distrust.

And then he hired a process server to serve the summons for divorce on her – starting with an attack which makes anyone feel fear – and when you are afraid, you need protection.

The attorneys were fighting over the kids’ schedule for spending time with dad, and when the fight becomes framed as being about power – who will ‘win’ and who will ‘lose’ – it is hard to evaluate the benefit of trying out different schedules, seeing how they feel.

In mediation, I could ask “how about we try mom’s idea for November, and dad’s idea for December, and then meet in early January and see how the kids are doing, and how it felt?”

But then in mediation we start from an underlying premise that we can find what they both – at least as far as their kids are concerned – need. That there is a place which will meet the needs of all members of the family. An assumption of bounty, rather than one of limited resources. That quality time with each parent benefits the kids and all of them.

We need enough trust that if one says, ‘the baby had a lot of trouble falling asleep,’ the other parent will say, ‘oh, the poor baby, what do you think caused that? how can we help him to avoid that in the future?’ and they can work together to try to resolve the problem.

Here – not sure we had that.

Also – she was invested in proving that she has been the #1 parent in the kids’ lives – wanted to know dad’s work schedule over the past year, to prove that he wasn’t a consistent dad. Instead of the question framed as – how can he be a better dad going forward, given his work and travel obligations?

Fuel for Fights

April 20th, 2017

People get into the worst fights when what they are fighting about is not what they are really fighting about.

I am working with a couple who have an extremely (unusually) hostile and embittered post-divorce relationship. I am working with them as a parenting coordinator, not a mediator – which means that I was appointed by the court, and have the power to make decisions, if there is a time-sensitive matter pending. Usually, during mediation, I don’t have the power to make decisions (and why should I? Those are not my kids).

This couple contacts me periodically to mediate disagreements, as they arise.

Recently, they reached out to me, because their child’s pediatrician recommended that the child see a psychiatrist. (‘Hurray,’ I thought, because after witnessing the amount of venom and rage that these parents express toward each other, I could only imagine how pulled-in-two that child is constantly feeling – great to give the child the support of a therapist.)

But now they are tussling – bitterly – over which psychiatrist to choose! The father works at a premier, top-ranked teaching hospital, and received some referrals to a couple of doctors affiliated with the hospital, by someone in his department. The mother now thinks that anyone in the hospital is automatically suspect, and will be biased in favor of the father, simply because he works there.

Conflicts are:

Will Dr. be biased in favor of the parent who pays? One parent has offered to pay if services are not covered by insurance.
Will Dr. be biased if one parent is employee of the same hospital at which Dr. is working?
Will the child be pressured by one parent or the other to choose a Dr. which he/she chose first?

And the real underlying conflict is the competitive battle that these parents remain locked in – who will ultimately “win?” Because – I would think that credentials and years of experience would give the doctor a presumption of competence.

Does 50/50 reflect your feelings of self-worth?

March 15th, 2017

A couple came in to see me to mediate the terms of their separation. While still living together, the questions I would usually ask are:

• what are your thoughts about who will move out?
• what schedule do you want for the children to spend time with both of you?
• do you want to separate finances now? That will require (most likely) support payments (Child and maybe Spousal), and determining who will pay which expenses.
• or – you could just maintain joint accounts, and continue paying bills, including the new bills for an additional apartment, together, for the time being.
• is there anything else you need to discuss right now?

However, as we talked, it seemed to me that Allie wanted a more detailed and final separation, more like a comprehensive divorce settlement. She wanted to separate their money. She didn’t want Warren to look at her spending, or comment about what she spent money on.

This couple can afford to have one kid in boarding school, and one kid in private day school (and they do) – and yet, most of their conflicts revolve around money.

But did their conflicts really revolve around money? Allie had not been working outside the home, during their marriage. Their older child had special needs, and Allie had been the parent who organized and brought the child to all of the diagnostic and therapy/treatment appointments, while at the same time managing the household. Allie spoke clearly and eloquently about the ways she had contributed to Warren’s and to the children’s successes – Warren had always been able to work late, and to travel as much as his employer wanted him to. He was able to be completely dedicated to his career, because Allie was home and completely dedicated to keeping the family running (food on the table, clothes to the dry cleaner, kids to appointments, schools, tutors, advocating for services, etc.).

Warren agreed and acknowledged that Allie had done great work as a parent and homemaker; but I could see her brushing him off. Allie did not hear Warren’s compliments and recognition, while I saw that an off-hand comment to the contrary stung her deeply.

She said that during their marriage, she would occasionally want to pamper herself in some way, but that Warren would make disparaging comments about her spending, which made her feel ‘worth less,’ than Warren, because her work did not bring in money to the family.

It was these feelings of being worth less than Warren that caused Allie to end the marriage. Allie said to me, during mediation, “I want spousal support that will give me what I’m worth.”

This struck me as a very difficult goal. Is our “worth” as human beings tied to how much we earn (or don’t earn) in our jobs? I don’t think so. Would their children feel that their mother is worth less as a person, because she is not earning? Definitely not.

But – can the amount of monthly spousal support that Warren pays to Allie make her feel that she is worth more? I would posit that the answer to that question is – no.

“There’s a hole in the middle of the prettiest life,” as the song goes* – and nothing will fill it up.

It doesn’t help that Allie has not handled money much, during their marriage. Warren pays all the bills for the family, invests their savings and retirement assets, and Allie admittedly is ‘not good at understanding finances,’ so she may not have a realistic understanding of what are the options for the monthly support.

Warren started out by offering her 50% of the family income, and he said that they would each pay 50% of the family expenses, but Allie felt that would be too much book-keeping.

That surprised me – because 50% would meant Allie is an an equal – what could be more fair than that? And symbolize better that they are of equal worth?

—————
* For Real, by Bob Franke

HBO Show Divorce

November 5th, 2016

Just watched the first episode of the new HBO show, “Divorce.”

They got so many things right. The humanity, pain and flaws that are in us all.

The irritation that we all feel with their spouses about petty little things when you’ve been married for decades. And yet, the way we end up knowing them inside and out, including their digestive schedules.

The way that a random little aside can trigger a huge fight. (Because, of course, it’s not random, and it’s not little. It’s part of a continuing conflict, that you return to to pick and pick and pick at.)

The appeal of the affair, the glittering idea that there is somewhere you can go and get back to your former life. The life that was there before you got married and had kids, where you can focus on just yourself, you can just have pleasure and escape and freedom. And how quickly that myth was shattered, when she told her lover that she was leaving her husband. “But you have children,” he said, with obvious consternation – revealing that he had no interest in being part of a future with her children.

The way that the husband said, “Let me give you an orgasm that will make everything okay,” trying to think how to fix things, and going straight to sex.

And then how I shuddered at the end when he said “I’m going to make sure that your kids hate you.” Kids will never thank you for making them lose their connection to their other parent. And yet – parents (married, separated or divorced) say the exact wrong things to their kids every day, because we are all flawed humans, and it’s realistic. And in the pain of recent separation, with all your nerve endings glowing, you can’t always see the big picture, and find your higher self.

Very painful show but good so far. I will watch the second episode.

Negotiation in the Shadow of Threat

September 13th, 2016

I had a call yesterday from Josh, who is working with his wife in mediation, with another mediator. Josh called to ask me about being his reviewing attorney, and wanted to get my take on a couple of things.

Josh and his wife, Becka, were having conflicts over who would move out of their house. They had separated bedrooms months ago (Josh has been sleeping on the couch,) and have put a schedule in place for caring for their children, so that each took turns making dinner, being on homework duty – and having nights ‘off,’ just as they will do when they separate. But they are both still residing in the house.

Josh said that Becka is a type-A high strung person, who plays a lot of tennis and runs marathons, and that she has trouble not being in control. During mediation, she had said to him, “Either you move out, or mediation ends now, and I hire a litigation attorney.”

This is troubling on several levels. First of all, mediation is a voluntary process. The reason that the process is voluntary, is so that we end up with an agreement that works for both people and that reflects both people’s needs, interests, ideas, etc.

Becka was instead attempting to negotiate via threat and duress. “I will get the big guns out to destroy your life. I will spend our children’s entire college fund on litigation fees, just to make your life a living hell, I am THAT angry. You had better give in to me, or you will regret it.”

We can’t mediate in the shadow of threats. Just as – people can’t freely discuss their honest thoughts, ideas, feelings, if they fear later that they will be hit, for having disagreed with their (former) partners.

Becka is – intentionally or not – creating exactly what she threatens, because Josh may not be able to return to mediation.

What if Becka were instead to say, “I am really suffering, with both of us being in the house. Would you move out if I were to . . . “ and find some ways to sweeten the pot. Offer to give him some extra cash in the final settlement? Not take a piece of retirement that she would be entitled to? Offer to pay spousal support to him? Or pay his moving and set-up costs? Or offer more time with the children?

Then she would be negotiating. Mediation is about (1) coming to have a better understanding about what your ex needs, in order to move forward, and (2) reaching across the table, to offer something they want, in order to get something that you want.

Without the willingness to listen, hear, and try to understand the other person’s perspective, we cannot accomplish movement in mediation.

 

Relocation and zero-sum discussion

May 12th, 2016

I am sometimes so moved by this work.  There is so much at stake, and it means so much to my clients.

Today I met with a couple. The husband is a suited-up, successful professional, who cried, when thinking about the wife moving away to a different city, with their son.

Relocation is such a painful issue. Certainly – it’s better now that we have Facetime/Skype – at least you can see your kid. My daughter is away at college, and I do feel that I miss her less, after we Skype, than I do when we just talk on the phone. Seeing her face, her expressions – makes up for something.

But – ultimately – it’s a win/lose kind of issue, because one person will get those sleepy nights, putting your kid to bed – the hanging out – with him doing homework, and you chopping veggies for salad – the watching tv together – even the hectic mornings, rushing around getting breakfast, showered, dressed – when you hear those random questions about life, when you hear about her dream, when he tells you what happened in history class. And the other parent will miss many (though not all) of those moments.

But children really do need both parents, and children don’t stop thinking about the absent parent. They might think more about the absent parent. How many books are there about teens who are obsessed with their absent parents? A lot.

My hope is that we can find the interests they have in common – that the child really does need BOTH of his parents.  Can we focus on what the mother will be able to do to encourage the relationship of the father and the child?  Summers, school holidays, the child can spend with his father.  Maybe the mother can find a place for the father to stay in the other city when he comes to visit.

 

On the Same Side?

January 12th, 2016

It is a challenge, in many relationships, to communicate your needs in a way that doesn’t come across as slamming your partner. I see men who feel decimated by the woman’s criticism – when I think the woman is trying to say, “I need this, and I would like to tell you about my needs, so that we can figure out a way for you to meet them, and I will be happy, and you will be happy.”

Callie and Brandon – unmarried parents –were so united talking about their child, that it seemed like it would be the easiest mediation, why did they even need me? and then we started to talk about money, and I could see Callie feeling that Brandon is ungenerous, and Brandon feeling that he is stretched as thin as he could be and can’t pay anything towrd support, food, diapers, child-care. In discussion, they were not able to create an environment to work together, contribute to their home and child, and as soon as she spoke, he just shut down – practically rolled his eyes – saying, “here we go, whatever I do do is unnoticed, unacknowledged, and she is only focused on – what she wants.”  He didn’t hear what she was saying.

Being engrossed with one’s own actions & point of view – normal, human – but how, in a couple, to bring in the acknowledgement of the other’s actions? In mediation, we really are in this together, because we won’t have a solution unless it works for both people.

are there winners & losers?

December 15th, 2015

I had a depressing mediation session today.  A session like today’s makes me realize that mediation is an opportunity.  But everyone is not able to take that opportunity.

The center of this couple’s conflicts revolve around their children.

Most couples I see fight.  But when I mention their kids, I get smiles, and proud stories of how well the children are doing – or stories about concerns for the children, and how to shield them from parental conflict – or discussion about what each child needs – but usually agreement about these things. The child is having problems, or doing really well, or needs a writing or math tutor, or could benefit from meeting with a therapist – the tale is the same, from both parents.

The families where that is not what’s going on – stand out.

This dad, Albert wants their son, Billy, to play on the travel softball team. Travel teams require a huge amount of time commitment. They usually have 2-3 games per week – and in the NYC area, with traffic, it can easily take more than an hour to get to each one of those games. In addition, the team has a couple of weekly practice sessions, and Billy is also doing private coaching. All of this, on top of school and homework, is a pretty heavy load for a 9 year old.

The mother, Andrea, has asked Billy if he wants to play on the travel soccer team, instead! Replacing the devil you know with the devil you don’t?

I have to be careful here, because I don’t want to be biased in either parent’s favor. Yes, the travel softball thing is a crazy schedule.   But – the kids who play travel sports tend to excel at sports through high school (and it can help with high school admissions (which is high-pressure in NYC, school-choice with applications, like applying to college only 4 years early), and college admissions (a girl I know recently got into Stanford because she was recruited by a sports coach.) In addition, kids on teams make friends more quickly, when entering a new school – because they have this close-knit group of other kids sharing an experience.

(Part of me feels like it’s insane and part of me wishes I had been able to manage the scheduling and put my kids on travel teams. Why I am a mediator – I can see both sides. But I digress.)

Billy is clearly aware of his parents’ conflicts. Billy told mom: “I feel like daddy won’t love me if I stop playing softball.” Andrea thinks Billy should play soccer, and applied to put him on a soccer travel team.

So – is it the travel team that is the problem? The softball playing? Or is it a power-grab – neither parent wants the kids participating in an activity picked by the other parent?

I worked with a very high-conflict couple, several years ago, as a parenting coordinator (a post-divorce process for couples who keep going back to court about their children,) and the parents actually had their 7-year-old going to 2 different dance studios and having classes and recitals at both studios, at the same time. Each of them wanted the chance to take the kid to dance class – so by golly, they each signed her up for dance classes. (They couldn’t alternate taking her? Because the need to avoid feeling like he/she LOST.)

Very dangerous, to frame things in that win/lose dichotomy. For many couples – thinking of it from the kid’s perspective can help guide the way to find the structure for the desired results.

 

Six Things Your Litigator Doesn’t Want You To Know

September 1st, 2015

Six Things Your Lawyer Doesn’t Want You To Know

 OR – Why You Should Mediate Your Divorce

  1. Children
  • Your children will never thank you for destroying their other parent
  • Children always know the truth of their parents’ divorce.  They will focus on it, and listen carefully to everything they hear, and piece together the story.
  • The longer you are embroiled in conflict, the longer before your children can settle back into being normal kids – focusing on school, friends, music, soccer – and not on the conflict between the two people they love most in this world.
  • No lawyer or judge knows your children as well as you do, and they don’t, and never will, care about your children as much as you do.
  • The legal system sees your children as pawns – who “has custody” of them?  Who “has visitation” with them?
  • Actually – the words “custody” and “visitation” don’t have to appear in your parenting agreement!
  • Who “visits” their children?  You want parenting time, not visiting time.  The children are not in prison.
  1. Cost
  •       Do you want to put your children through college?  Or your lawyer’s children?
  •       Litigation is obscenely expensive – $100,000 to $300,000, if you end up at trial.
  •        There are families for whom $300,000 is peanuts, but that is not the case for most of us.  (And they have more to fight over, so spending $300,000 might make sense to them.)
  •        Lawyers have a conflict of interest around settling the case.  If an attorney stands to earn $20,000 in a negotiated divorce, and $150,000 if the case goes to trial, will he/she really put 100% of effort and focus into settling the case?  Would you?  (I’m sure many attorneys try, in good faith, to behave ethically, but we are all influenced by our own needs and potential rewards.)
  •     Ask your attorney to sign an agreement to withdraw, in the event the case goes to litigation, and see how he/she reacts.  A collaborative agreement which requires mandatory withdrawal will shift the attorney’s focus toward settling, and get rid of the conflict of interest.
  1. The judge is not going to “feel your pain.”
  •          The judge will not be outraged (the way that you understandably may be) by the way your spouse betrayed you, broke all promises, ignored your marriage vows and left the marriage.  The judge has (a) heard it all before and (b) wants to give each side something.
  •        Judges have a tendency to have you win on some issues, and your ex win on others.  To split the baby.
  •      You won’t see a judge for a long time, and when you do, he/she will want to hear from your lawyer, not you.
  •      The judge will not be the wise parent whom you have always wished you had, and believe you deserve.
  •        Judge’s dockets are too full for them to get to know you, and to put a lot of deep thought into your situation, your family, and your best outcome.
  1. Lawyers
  •         Attorneys make a lot of promises they can’t keep.
  •      The outcome of a trial is never a sure thing.
  •          Lawyers are good about saying, “I’ll argue this, and I’ll argue that,” but not always good about telling you the arguments against you — “And this is what your ex’s lawyer is going to argue for him/her,” or “This is the outcome that will most likely be ordered in court.”
  •        The lawyer’s job is to keep fighting, and to come up with arguments to strengthen your case.
  •       The lawyer’s job is not to resolve things, to help you move on with your life.
  •       Litigators are fire-fighters and they won’t focus on your house till it’s about to burn down.  Which won’t be for 2-3 years.
  1. Ritualized War
  •                 The legal system sees the restructuring of your family as a legal problem.
  •                  If it’s a legal problem, you need lawyers to “resolve” it.
  •                   You can, instead, see it as a human/family problem, and the people who best know you, your family, your children, are in the best position to help you decide what you each need, going forward.
  •                      If you didn’t need a lawyer to get married, why do you need one to get divorced?
  1. It’s Your Life
  •                       People often wish to give this whole mess to someone else – to meet with a lawyer, an expert, a  judge, who will hear their side, and understand and sympathize, and take care of it for them. (And who can blame you?  Divorce is overwhelming.)
  •                         Well – yes – most matrimonial lawyers are able to sympathize, and listen to your story, and get angry on your behalf.
  •                          But the reality is that, once you have paid the retainer fees, you will find it very difficult to reach your attorney on the phone.
  •                             Litigation takes up a lot of time, and attorneys are usually in court every morning, working on the cases that are ready to go to trial.
  •                             And your case – well it won’t be ready to go to trial for 2-3 years.

The Draw of Conflict

June 29th, 2015

To my mind, the costs of litigation and of fighting are so high – that I really can’t imagine deciding that I would rather fight than settle.  But I guess it mainly depends on how the conflict is framed – whether you feel that there is an important principle at stake.

If you’re going to fight about something having to do with the children, they will know that you are fighting in court, and they will know that one parent thinks the other is screwing them over (or both parents think the other is screwing them over) and they will feel pulled-apart and tormented and guilty, over being the subject of the parents’ conflict.

If a couple has true joint custody – 50/50 time division with the children – NY State still requires some payment of child support.

There are several options:

  • put in payments back and forth to each other – i.e., dad pays mom $100 on the 1st of the month, and mom pays dad $100 on the 15th of the month
  • net out child support payments, based on incomes – if dad would have to pay $1,000 per month child support to mom, under the statute, and mom would have to pay $800 per month to dad, then dad pays $200 per month to mom
  • analyze incomes and expenses, and allocate the shortfall equally
  • put in child support to agreement and divorce papers, and enter into a “side agreement,” signed 1 day after, where the recipient parent agrees not to enforce the order for child support.  This one is risky – because it’s really an end-run around the courts, and it’s hard to know whether it would be enforceable.

For someone who is very economically comfortable, but feels that there is a principle at stake – “if we both have the children 50% of the time, why should I pay child support?” –  is it really worth fighting about in court?  You will end up, very quickly, spending amounts on attorney fees that are similar to what you would spend by just paying child support.  And – in general – the courts are not too sympathetic to parents who don’t want to pay child support.

Even in a 50/50 time sharing case.

But – there is, I think, an unconscious fantasy that you will teach the other person a lesson.  That he/she will finally understand how hurt you were, or how wrong he/she is – when you show that you are willing to stake more money than is in controversy, to prove him/her wrong, and you right.

I don’t think anyone comes out of court feeling, “Wow, now I really get it, I was so wrong.”  In fact – I don’t think anyone comes out of court feeling, “Wow that was so satisfying, that judge totally understood me.”

In the divorce context, that is.

And then there is this article (from the website of Geneen Roth, Vol. 6, Issue 6):

I recalled something [my ex] said during a fight we had in a spectacular restaurant. “Why not think of all the times we’ve celebrated and all the times we have yet to celebrate as a bank account from which we can draw funds?” he asked. “Let’s put aside this fight, take some celebration savings out now, and replenish the fund when we get home.”

I remember looking from him to the mushroom tart on my plate, thinking, I could let this horrible fight go. I could enjoy this tart, and we could have a wonderful time.  Then I thought, ‘but if I let it go, I will be a wimp.  He doesn’t deserve to have a good time after what he’s done.  If I let go, he will win.’   I didn’t bother to ask myself what I would lose by holding on to my anger — I only figured that if he didn’t love me, the least he could do was suffer. So I said, “Forget it. It’s a terrible idea,” and ruined the evening for us both