Articles Posted in Conflict Resolution

Conflict in the context of divorce can be emotionally and financially debilitating. Family court judges commonly make decisions and orders based on how the law applies to what has already transpired between the parties, to the past. And this approach keeps the spouses in a conflict trap where they are focused on the past and the grievances, hurts and betrayals; rather than on the future, and how they can best solve the problems in order to move forward.

Collaborative Divorce and Mediation on the other hand, enable the parties to focus on what is important for them now and in the future. By focusing on problem solving and real listening, there tends to unfold an understanding that can help couples let go of the conflict and the past and move forward in a productive way, solve the problems and help heal the pain, grief, and anger.

A forward looking focus, however, doesn’t preclude talking about the past because sometimes it is important, essential even, for spouses to be able to express and have heard by the other, their understandings of what went wrong with the relationship. This mutual expression of the hurt and anger, if entered into with an open heart and deep listening can be profoundly instructive and helpful to the process. This is especially important if there will be a continuing relationship, for example, co-parents.

Sometimes, quite often in fact, the flames of conflict in divorce cases are fanned by attorneys who have more to gain from conflict than from resolution. Against my better judgment, I recently accepted a litigation case with the hope that perhaps I could help facilitate a negotiated settlement. It appeared to be a matter that could be settled with relative ease. During the negotiation process between the attorneys, the clients had a long talk, longer than they had had in years from what I was told, and agreed to put the matter on hold for some time to see if they might reconcile and resolve some of the disputed issues between them.

Upon hearing this, I was tentatively hopeful for both and provided my client with resources he might consider to help improve their communication and relationship and suggested that marital counseling may also be very helpful. And of course, a flower or two wouldn’t hurt.

When my client’s spouse told her attorney of their plans, her attorney responded with the statement, “Oh, so he wins,” and grudgingly prepared a stipulation to continue the scheduled hearing out for a mere three months. I was horrified but not really surprised.

Given the high divorce rate in this country, just about all of us have been impacted in some way by divorce and custody/support matters. Perhaps it was our own family or parents or our own divorce, or simply a very close friend or family member. And with few exceptions, a majority of folks in these situations feel they lost too much or paid too much, received too little, or had a custody/visitation order that was “unfair” to them, and worse. 
Based on these experiences, we develop opinions and biases about how such matters should be handled. And of course, every judicial officer, as well as recommending Family Court Services mediators and custody evaluators, have their own personal biases. Consequently, the reality is that the same exact case may have very different results in different court rooms.

This is not to disparage family court judges who deal with complex issues (permanent removal of children to another state, custody, visitation, domestic abuse, determining real income, valuing assets (eg, closely held businesses) on a daily basis, with honor and integrity. But the inherent bias based on one’s experiences in many cases cannot help but bias the judge’s factual findings, their discretion, and how they decide to apply the law. This bias probably exists more in family law than in other areas. No amount of bias elimination training can make a judge forget about their life experiences, assumptions, personal beliefs/views and biases. Consequently, family law litigation can be unfair and inequitable.

However, most judges it is hoped, exercise enough self awareness to check in with their personal biases before making a ruling. And it is important to note that mediators and Collaborative professionals are no less immune to being impacted by personal experience as judges and others in the court system. We too are human beings with biases and must guard against forming opinions based on them. However, we are not judging and making orders, rather our role to facilitate a full and constructive dialogue between the parties that will enable them to reach their own agreement, so our biases have less impact. And ethical and conscientious mediators are very aware of the potential for bias and work hard to be neutral and unbiased.

As a Collaborative Family Law Attorney and Mediator, I am privileged to work with those who, because of their divorce, are undergoing a significant life change. Although a mediated or Collaborative divorce is far less painful, emotionally, psychologically, and financially, than a litigated divorce, it is still a divorce, and according to the Surgeon General, divorce is one of life’s greatest stressors.

So it is often helpful to rely on insights from some our spiritual leading lights to help lead the way and remind us to be present when stress and anxiety arise. These sayings can also help us get in touch with our own inner wisdom as we move forward into a new life after divorce. They are also useful reminders for all of as a new year begins.

Be kind whenever possible. It is always possible.” ~ Dalai Lama

A recent California Court of Appeal opinion upheld a grant of visitation to a grandparent over a father’s objection.

Child custody and visitation issues often give rise to the most high conflict disputes in a California divorce. If parents can’t agree about living arrangements, vacation schedules and the best educational environment for their child or children, these decisions may very well be made by a family court judge based on his or her assessment of the best interests of the children and the parents’ capabilities.

A recent California Court of Appeal Opinion in Hoag v. Diedjomahor considered a less common scenario: the court’s grant of visitation to a grandparent over a parent’s objection. The maternal grandmother filed for visitation following the death of her daughter, the mother of couple’s daughters. The parents had lived at the grandmother’s home, as had the mother and children alone during a period of legal separation. After the parents reconciled, the grandmother moved in with the family.

Talk to your children about what is happening

Only a minority of divorcing parents sit down with their kids and explain that the marriage is ending and encourage them to ask questions. Some say nothing, surely leaving the kids totally confused and fearful. It is so important to talk to your kids, because almost without fail, they know something is wrong, they just don’t know what and that creates a great deal of anxiety. Tell them as simply as possible, what is happening and what it means to them and their lives. When parents don’t communicate this to the children, the kids feel anxious, upset and fearful and have a much more difficult time coping with the separation and divorce.

Be sensitive and thoughtful

Across the country, state courts face severe budget cuts that threaten access to justice for many and California is no exception. California state legislators have cut $350 million from the state court budget, with more cuts certain to follow. Local court will lose $135 million in the fiscal year that began July 1 and another $170 million next year from an overall budget of more than $3 billion.

In Santa Clara County, it means a loss of $6.8 million this year and perhaps more than double that amount next year. San Mateo County’s courts will take at least a $2.7 million hit this year, while Alameda County’s court system will be cut by more than $6.7 million. Contra Costa County’s courts will absorb more than $3 million in cuts and will likewise be forced to cut even more from next year’s budget.

For those considering divorce, be prepared. Twenty-five of San Francisco’s 63 Superior court chambers have been closed; two hundred of 480 employees will be laid off. “It will take a year and a half to get a divorce in San Francisco and to get a child custody order. If you file suit, we won’t do anything with your case for five years,” according to San Francisco Superior Court spokesperson Ann Donlan. That can be disastrous if the matter concerns custody of children, visitation, or many other sensitive issues.

We just got a new puppy, a 3 month old Australian Shepherd and while there is no separation or divorce pending, it made me think about what that situation might look like. For many couples who choose to forego having children, their pets become an increasingly important part of the family. But even in many families with children the pet is often almost another child whom all are very attached to. However, the family law system in California and most states provides few options to divorcing pet owners.

In California and most states the law regarding human children is intended to protect the best interests of children in divorce and thus provides for shared custody and support. Pets, however are classified as personal property. Some have advocated for additional recognition and status of companion animals, but legislators have yet to show that type of vision or thoughtfulness, so there is currently no legal distinction between your dog and your sofa when it comes to divorce and no basis in the law for treating the dog any differently than the sofa. (This article assumes the pet is community property) The Court of Appeals Iowa in ruling on an award of a dog to the husband in a dissolution held that a dog is personal property whose best interests need not be considered. In re Marriage of Stewart, 356 N.W. 2D 611 (Iowa Ct. App. 1984)

VALUATION

With all due respect to the customs, laws and practices of other cultures and countries, this story made me glad that I practice family law in California.

The BBC reports that a Sudanese man has been forced to take a goat as his “wife”, after he was caught having sex with the animal.

The goat’s owner, Mr Alifi, said he surprised the man with his goat and took him to a council of elders.

Divorce is one of life’s biggest and most painful stressors and traumas and far too often those involved carry the weight, the pain, the blame, the hurt and the anger around with them for years, long after the divorce itself.

Dr. Fred Luskin of the Stanford Forgiveness Project defines forgiveness as follows: to forgive is to gibe up all hope for a better past. If you are stuck in regret or anger over the past you have less energy available for your life today, and are in some ways compromising your future by being defensive and carrying around some unhappiness from the past.

Forgiveness is about healing. There is a distinction between justice, reconciliation, condoning and forgiveness. Forgiveness does not mean you condone what was done, nor does it mean you have to reconcile with or like the person who did it. It is fine to say, “This was such a dreadful act that I must end my relationship with them.” And it doesn’t mean you don’t seek justice, if warranted. These are separate from the inner healing that occurs with forgiveness, which means that you don’t take what happened as just personal, but that you see it as a part of the bigger, ongoing human experience of hurt, resolution, conflict and negotiation.