Paul has left my office. The session ended with Rose’s demand that Paul take Popcorn, their Golden retriever, the following morning or Popcorn was “going to the pound.” Rose explained this was because she had been left with both an infant and a big dog, and she couldn’t care for both. And it was in spite of Paul’s statement that he lived in the cheapest, lousiest apartment in Santa Barbara: “I may be able to have a goldfish, but not a Golden retriever.”
I had been hired by both parties to help them resolve their divorce through the mediation process. My initial question is usually, “What can I do to enhance the probability that this couple will be able to accomplish a mediated divorce?”
Here, I saw two choices: (a) Tell Rose that by coming late to their session — and by bringing the baby and the dog — she was making it clear that she did not intend to do business with Paul, or (b) instead of focusing on what she didn’t intend to do (business), I could attempt to find out what she did intend to accomplish.
If mediation were merely a method for facilitating business transactions, the mediator would attempt to maintain normal and effective business communications and discourage behavior that frustrated progress. Coming to a meeting late and without the intent to work on some aspect of a solution is action that would have to be noted. The reason for the un-businesslike behavior wouldn’t be of much interest.
It must be clear that, if there are to be future meetings, the parties must be prompt and prepared to do business with each other. To disregard or to excuse such disruptive behavior would have the immediate effect of undermining the process.
But the essence of a divorce settlement is neither a business nor a legal transaction. It is psychological, and the psychological process is grief. Elisabeth Kübler-Ross’ book On Death and Dying was published in 1969. It describes a five-stage model based on personal observations she made. While her conclusions were not the product of a replicable, objectively, and “falsifiable” study, they met a social need and were quickly included in medical school curricula and taken up by organizations dealing with death (most notably the hospice movement).
Amazingly, there were no published, empirically-based studies designed to support or contest the Kübler-Ross model until 2009, when a report by a group called the “Yale Bereavement Study” appeared in the Journal of the American Medical Association (Feb. 21, 2007). The Yale study found that the model predicted the order in which emotional stages appear — and it also predicted the order in which each stage peaked and terminated.
More is known about divorce in South County Santa Barbara than in any other jurisdiction in the country, and we know that the average interval between separation and judgment is 29.4 months. The explanation that “best fits” the data is grief, and the behavior of divorcing couples has the same essential characteristics of the grief experienced within the context of death (see SBDivorceArchives.com).
The first stage of the Kubler-Ross model is “shock and denial,” which is exactly what Rose’s behavior is exhibiting. She’s not trying to sabotage the mediation. She is expressing in her own way, as she must do, a psychological state that is both normal and predictable.
Rose’s behavior had the effect of testing — perhaps for the last time — Paul’s determination to divorce. She did it by presenting herself, their baby and their dog, so he could “see what he was leaving.” And why would she go to work on the terms for ending the marriage until she was satisfied that it was really going to happen?
I asked, “Are you exhausted?”
Rose replied, “Yeah, that was hard.”
“It seemed to me it was something you felt you had to do.”
“I did. Now I kind of feel like a dope. What was I expecting him to do? Did I think he was going to say, ‘Oh, Rose. Thank you for showing me the baby and the dog. When I told you I wanted to divorce I had forgotten about them and I never considered how hard this was going to be on you. Will you please take me back?’ It didn’t happen. If he had any doubts, I just helped to dispel them.”
“Rose, do you think he had doubts?”
“It seems like this is an excruciatingly painful time for you.”
“Are you seeing a therapist?”
“I was, but I haven’t been for several weeks.”
“This is a time when therapy can really help — a lot more than I can, and it’s much less expensive. Can you resume the work you’ve started with the same therapist?”
“I’ll call her right away. I’m sure she’ll see me as soon as she can.”
“Here’s a question I’ll ask as time goes by: What kind of a person do you want to be when the divorce is finally over?”
“What kind of person? I don’t even know what that means.”
“When you can answer, it will be in your own terms. Right now my question is premature, but can you get a sense of it?”
“Would it be something like, I want to be a stronger person or a woman men don’t want to leave — something like that?”
“Yes. Something like that.”
“I’m ready to go home for a big cry.”
This brief conversation confirms for Rose that during this brief session she’s bravely accomplished something important. She has run her own experiment to determine if her marriage is over; it is over, and the outcome is unequivocal.
Paul, no doubt, expects her to adhere to normal business behavior. Rose wasn’t blamed for not doing what she couldn’t do. Instead, the reason for what she did was acknowledged and the outcome was made explicit, which should make it easier for her to accept. I’ll explain this to Paul and test him to see if he understands how an attempt to “do business” too soon will lead away from and not toward a durable resolution.
There is still the matter of the dog.
“Rose, there’s one more thing before you go.”
“Popcorn. Will you really take her to the pound tomorrow?”
“Paul loves Popcorn even though he doesn’t love me. I might have been thinking, ‘Maybe you don’t love me enough to stay married, but you might love me and Popcorn enough.’ It’s stupid. I know he can’t have a dog where he’s living now. I love Popcorn, too, and I’d never send her to the pound. I bluffed, and we both knew it.”
— Brian H. Burke is a certified family law specialist practicing family law and mediation in Santa Barbara. A researcher and educator in the field of divorce and family conflicts, he is also the creator of the Legal Road Map™. Click here for more information, call 805.965.2888 or e-mail email@example.com. Click here to read previous columns. The opinions expressed are his own.