Saturday, April 21 , 2018, 6:07 am | Fair 50º


Brian Burke: About Your Divorce (Letter 31)

Going around in circles, and three tasks still to be completed

Dear Spike and Pinky:

I’m drawing a line through your names because you have proven that you pay absolutely no attention to what I tell you, either face-to-face or through these letters. I heard Ken Falstrom say, “Don’t give advice to anyone who hasn’t asked for it.”

At a program for lawyers (presented by psychologists Drs. Judith and George Brown), there was a positive comment from one lawyer, and a second lawyer asked Judith, “Why can’t we beat that into their [clients’] heads?” There was an uncomfortable pause while Judith pondered the question. Then she said, “In my experience, I’ve never been able to beat anything into anyone’s head.”

That was a statement I never wanted to hear. I had been trained to believe that, under the right conditions and with the right performance, I could persuade anyone of anything. While this would normally result in an onslaught of cognitive dissonance because Judith’s belief and mine were in direct opposition, I experienced none; I knew she was right as soon as I heard her say the words. I’ve spent the past 20 years working to understand the implications.

You — plural — present a good example. You each asked me to recommend a mediator, so I waited until we were all together so I could tell you the same thing.

I know that when two people hear noises coming out of the mouth of a third person, there’s a very good chance they will hear and remember different things. For example, I gave you the names and phone numbers of four mediators, and I suggested you interview three (or at least two). I suggested you ask this question: “What is your Theory of Practice?” The mediator might be unfamiliar with the expression, but she should still be able to describe how she works. Mediation is not a licensed occupation and there is no oversight. (Attorney-mediators are under the jurisdiction of the State Bar Association and the Rules of Professional Conduct it enforces.)

There is no recognized or standard methodology for doing mediation, and you trust and pay this person to deal with the most intimate details of your life. She should be able to give you a coherent and concise description of what she does and the principles she relies on.

But you did not hear different things. Instead, I think you decided together to ignore what I said. You met with only one mediator, you liked her and you stopped right there. Typical.

Now you’ve called me to complain about the mediator, saying, “She doesn’t seem to know what she’s doing and we are going around in circles. We think we should try a new mediator.”

This is why you must interview more than one mediator at the outset — and before the process begins. The more mediators you interview, the better you get at discerning whether a problem is yours or the mediator’s. Here, the diagnosis is simple.

You (not the mediator) are still grieving. You’ve been apart for 14 months, so you are close to the edge of the temporal window (18 months) where settlements become ripe and couples are able to resolve their cases in ways they couldn’t have done six months earlier. However, you still have some work to do before you are in the right frame of mind to design a settlement that will work and that feels right — for both of you.

Going around in circles is what you should be doing at this stage because, regardless of what’s happening on the surface, there is work going on at a lower (or higher) level. There are three tasks you still must complete:

1) Learn a new way of talking to each other. It’s easy for a couple to fall into an intimate style of communication because it’s fun, efficient and creates a feeling of connectedness. It also implies an interest in the other person that no longer exists.

After a particularly good mediation session, it’s not uncommon for a couple to report an argument on the way to their cars. She said something that implied She had no interest in what He did for the rest of the afternoon. That hurt his feelings, so He threw a couple barbs at her that He knew would hurt her feelings just as She had hurt his. Maybe He has to hurt her a little bit more than She hurt him, because She started it. Then they got into a major argument that made them both, literally, sick.

When they saw me two weeks later, neither could remember what the argument was about — and neither wanted to repeat the experience.

Maybe it is “fun” to have this kind of exchange with your former partner, but the overwhelming majority of the divorcing population (96 percent in Santa Barbara) gets tired of it and learns how to stop it. There is a very small percentage (4 percent) of the divorcing population that can’t stop it. The chaos and conflict of the divorce take the place of the chaos and conflict of the marriage.

The War of the Roses is a brilliant movie. Michael Douglas had to kill them both in the end because if one survived, s/he would tell people what a jerk her “husband” was 20 years after his death. You’ve probably met someone like this.

I don’t think this first task needs to be taught. People figure it out for themselves. Maybe you should stop using your familiar nicknames, Pinky and Spike, when you are together.

2) The next task is to figure out how to manage the money. There is no longer a checkbook on the desk from which you can pay for everything. You’ll each have your own money, and you’re responsible for what happens to it. Your money is in banks and brokerage accounts — Spike, you need to learn how it all works. But before you make any decisions, please engage a financial planner. Make absolutely certain that nothing is being sold to you except advice and information. You must not have an advisor who gets a commission on what he sells you.

3) The final task is to become more and more comfortable with the form and content of the probable Marital Settlement Agreement (MSA). I’ve had several cases where one party tells the lawyer to “draft an agreement that gives her everything a judge would give her, add 10 percent, and zip it over to her lawyer.” In each case the response was “no” but in colorful language. When this happens, the divorce is dead in the water for about a year. He doesn’t want to bid “against himself,” and she can’t come up with a viable way to ask for what she’s decided she “needs” and he can afford without changing his life “one whit.”

When this work is done, the structure of your deal should become obvious to you and the mediator. She’ll then prepare a first draft of your agreement. For my first drafts, I use templates that have morphed terribly. I use one of these because it forces my clients to engage with the document to make all the corrections. This engagement with the “deal” helps make what we are doing feel real. I do the second draft without charge.

After the second draft of the MSA, it won’t be long before the beginning of Phase 2 of Stage Three. It’s called “The Big Stall,” and I’ll explain it in the next letter.


(Who is still you best friend even though you don’t do what I suggest. I’m used to 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 .(JavaScript must be enabled to view this email address).

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