Kane Law & Divorce Mediation Services

Yesterday as I perused the New York Times Sunday edition on a cloudy August Sunday, my eye caught the headline of Brant v. Brant, a nasty “high-stakes” divorce playing out in Connecticut courts. The author writes that this case is “…one of the most bitter, high-profile divorces in years. By the time Brant v. Brant goes to trial on September 20, the two sides will have generated more than 12,000 pages of public divorce documents (with thousands more sealed), paid millions of dollars in lawyers fees and fractured an already delicate cadre of family and friends forced to take sides.” (Laura M. Holson, “Divorce, Celebrity Style,” Sunday Styles, Sunday, August 22, 2010).

My first reaction was “Wow! That says it all—no privacy for the most confidential information in a marriage, horrific expenses that can ravage the financial security of divorcing spouses, and a train wreck for important relationships of family and friends.”

My second reaction was reflective. How lucky I am to focus my professional practice on the collaborative divorce models of mediation and the collaborative process. Couples who choose a good mediator or collaborative lawyer are more concerned with preserving important relationships with children, parents, siblings, and friends. They are sensitive to the high costs of traditional litigated divorce. While unwanted publicity of court documents may not have occurred to them, these couples are comforted by the knowledge that information shared in divorce mediation is generally privileged from disclosure without mutual consent.

As a mediator takes a divorcing couple through all the issues that need to be discussed for a comprehensive parenting plan and/or property settlement, the focus is on high-end goals for each spouse—not positions dictated by real or imagined wrongdoing by the other spouse. “I want to have a cooperative relationship with my ex based on mutual respect.” “I want us to parent with consistency and not put our kids in the middle of a disagreement.” “I want to be independent and financially secure.” These are the kind of goals that drive couples to consider mediation and collaborative divorce in the first place.

This is not to place divorcing couples choosing mediation on a pedestal. They reflect the same kind of pain, recrimination, and loss so often associated with divorce. The difference is that couples choosing mediation are able to look to the future instead of the past. And a future with better relationships, better joint parenting, and more financial security sounds infinitely preferable to the post-divorce lives of the Times marital warriors, Mr. and Mrs. Brant.
 

In my last post, I discussed the important direct benefits of Divorce Progress Notes.  Celebrating the interim agreements reached, reminding couples of their homework to prepare for the next session and creating the agenda—these deliverables all serve to help couples move through parenting and property issues to decision-making as efficiently as possible.

There are also indirect benefits from the use of Progress Notes, most importantly:

• Illuminating communication “bad habits” that are getting in the way of efficient brainstorming;
• Brainstorming where there is ambiguity or other options in the tentative agreements or views of the parties;
• Reinforcing my admonition about one-on-one discussions “between meetings” about finances and other touchy topics; and
• Emphasizing  by repetition the relationship between each spouse’s high end goals and the decisions reached;

Every couple I see has unique communication habits honed over the years.  Here I focus on bad habits that get in the way of good agreements in the best interests of the wife and husband.  There may be the gentle put-down that doesn’t feel gentle at all to the recipient.  Or couples that intuitively “think” they know each other’s thoughts and motives—and are not bashful about exposing their perception of unworthy motives on the part of their partner.: “All John (or Mary) is interested in is making sure I don’t have enough money to afford a decent house.”

I remind my clients in Progress Notes that impugning the motives of their spouse must be avoided if they are to achieve their goals.  Focus on “I” messages instead of “You” messages in communicating about important things (and what is more important that how you share your kids and property).  “I” messages (1) keep the focus on me; (2) are non-judgmental; (3) Describe my needs and feelings; (4)Do not lower the other’s self esteem. “You” messages, on the other hand, (1) put the focus on the other person; (2) Seldom mention my needs; (3)Are blameful; and (4)Tend to erode self-esteem.

Without the clutter of “You” messages, couples can brainstorm solutions to their issues. Continuing the brainstorming is part of this mediator’s Progress Notes.  I use lots of parentheses in raising questions as I summarize decisions and issues discussed at each session. For example, (Have you considered who stands to gain the most from taking the children as personal deductions?) (What about the possibility of avoiding the expense of shifting 401K retirement assets from a past employer to your spouse by first rolling over the assets into a rollover IRA in the former employee’s name?). Sometimes good ideas take a while to germinate—they can’t always be summoned intuitively during a 2 hour mediation session or 4-way collaborative meeting.

Progress Notes also allow the mediator to warn clients about things to avoid between sessions. Unless I am dealing with a couple with excellent interpersonal communication skills and knowledge about finances, I typically warn clients to be careful about one-on-one discussions about money and financial support.  I do this in bold letters in the Progress Notes: ‘Please do not discuss the substance of your divorce negotiations/differences outside the mediation room, except with a professional advisor.  That goes for family, friends, and particularly, communications between the two of you in or out of the house.”

Most importantly, Progress Notes allow the mediator or collaborative lawyer to repeat the high end goals expressed by both wife and husband at the first session—with the suggestion that each client measure the progress made and the decisions reached on the standard of his or her goals in entering mediation or the collaborative divorce process. One of my favorite is “I want to be able to stand next to my former spouse and witness our daughter’s wedding together.”

These high end goals are like the lighthouse beacon that serves to bring the ship through the shoals and storms to a safe harbor after a successful voyage. They guide us toward a respectful and fair divorce.  What a rewarding feeling of accomplishment on the part of both clients as well as the guides helping them along the way!

Labor Day is the traditional end of summer vacation and return to work.  Not surprisingly, As a divorce mediator and collaborative lawyer, I see an upsurge of calls from couples who have deferred the hard questions of how to best conclude their marriages and parent their children in separate households.  I hear in their voices a sense of purpose and urgency.  It’s time to get back to work.

I’m guessing that the surge in the stock market and up tick in real estate prices have played a role in moving couples from planning toward action.  Some experts say that this painful recession is technically over even though unemployment has yet to move in a positive direction.  Clients tell me that they are no longer avoiding their quarterly retirement reports as their investments have chalked up the best quarterly gain in years. Nor do my mediation clients any longer take the position that 2009 house values are an aberration that should be ignored in valuing community property.

From my perspective, this renewed courage to face reality is healthy. And the willingness of couples to explore mediated divorce settlements or the collaborative divorce process is encouraging.  The good news is that mediation continues to offer an economically and emotionally satisfying alternative to traditional court-centered divorce.  And the collaborative process really does provide that necessary “safe container” for many couples needing the support of a professional team to successfully navigate the shoals of divorce.

For couples starting mediated divorce settlement negotiations or the collaborative divorce process in the last few months of 2009, it appears more likely than not that their divorce finalization will coincide with the economy’s emergence from recession into a new growth cycle.  That’s a powerful transition to new life on both counts.

When I set the table for a mediation session, I’m sometimes reminded of all the hoopla surrounding the beginning of the Vietnam Peace Talks in Paris in the early 1970s. For those not around at the time, there were months of wrangling between the U.S. and North Vietnam on the size and shape of the table—not to mention the seating arrangements for the negotiators. I’ve found through experience that the physical environment is as important to the success of divorce mediation as it is to questions of war and peace.

Setting the mediation table means making sure that there are two chairs facing me across the conference room table. I want the divorcing couple to be sitting side by side working through their differences—not facing each other across the table. Facing each other promotes positional negotiations and confrontation, neither of which is conducive to success. Also, it is important that the mediator be able to give each spouse equal face time, reinforcing the truth that as the mediator, I am totally impartial and listening intently to both spouses on the issues important to each spouse. That becomes impossible if the couple is facing each other instead of me.

Sometimes one or both spouses will move away from each other consciously or unconsciously during the session. On one occasion, a spouse actually moved around the rectangular table, allowing him to stare at his spouse. Usually, a simple reminder will suffice to return the couple to their original positions. The more glaring example was a tip-off that this particular mediation was in trouble.

Two blank sheets of paper in front of each spouse complete the table setting. It’s a constant reminder of one of my rules, DON’T INTERRUPT!!!. As I state at the opening session, the piece of paper is for note taking in case your spouse says something that doesn’t ring true or complete in your view. I will always give both spouses equal time to correct the record so a written reminder of the “point” allows for this to happen without the need to interrupt.

These are a few examples of the importance I place on the physical environment for mediation sessions. I am always alert for whatever the divorcing couple needs to promote a learning conversation resulting in a durable agreement.