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Tuesday, December 11 , 2018, 4:43 am | Fair 42º


Brian Burke: About Your Divorce (Column 159) — If Divorce is Bandage, How Do You Remove It?

Oblique Strategy #53 — If divorce were like a bandage, would you pull it off quickly?

Dan Ariely suffered from terrible burns that required years of treatment. Once recovered, he became a professor at MIT and wrote his book, Predictably Irrational.

The book starts with a description of the pain experienced daily when bandages were removed and replaced. Nurses used a practiced move to snatch the old bandage off the skin as quickly as possible, knowing it caused a spike of intense pain.

The nurses believed patients suffered less from the brief but intense pain caused by quick removal than they would from sustained, moderately severe pain caused by careful, slow removal.

Ariely doubted this theory and, after he was released from the hospital, he designed and conducted experiments to compare sustained, moderately severe pain to the effect of a quick spike of very intense pain.

As he thought, his subjects tolerated the moderately severe pain administered over time better than the quick application of extreme pain.

In other words, he concluded the bandages were being removed in a way that inflicted unnecessary pain. When Ariely took his finding to the burn ward, he thought the nurses would be receptive and appreciative of his discovery. They weren’t.

The nurse he had come to like the most explained he had considered the pain from the perspective of the patient rather than from the perspective of the caregiver.

For the nurses, the infliction of pain on their patients caused by the necessity of changing dressings was pure torment. The faster the procedure was completed, the less the nurse suffered.

Who should decide who suffers from which kind of pain?

I repeat this story from Ariely’s book because, for years, I’ve heard both judges and lawyers compare divorce to the removal of a bandage.

Metaphors are used when we want to explain something unknown to a listener in terms of what the listener is familiar with — the unknown in terms of the known.

I bought the book, The Origin of Consciousness in the Breakdown of the Bicameral Mind, in 1976 because of the audacious title. It’s kept its space on my bookshelf due to the title, and because it makes a distinction and names the two parts of the metaphor.

The distinction is useful, but I haven’t been able to remember the names and must go to the tab on page 48 once every two or three years.

The unknown is the metaphrand, and the known is the metaphier.

If divorce is the metaphrand, and the metaphier used to explain it is War, Battle, Fight, Contest, Sickness, Life Experience, Suffering, or Personal Journey, do you think the people who use Personal Journey as the metaphier will have a different experience from those who use one of the competitive metaphiers?

When judges and lawyers use the bandage metaphor to describe the proper way to manage a divorce, I have never heard anyone say, “Go slowly and carefully.”

Instead they say, “We’re the professionals. We’ve seen dozens or hundreds of divorces. What’s best for all involved is to get the case resolved quickly and let the parties get on with their lives; the fastest way to get a case settled is to prepare it for trial.”

The implicature of the last sentence needs to be unpacked: We are the professionals. We know best.

Really? Exactly what is it about you that qualifies you to know how I should live my life? If you intend to substitute your values and beliefs for mine, can you and will you identify what those beliefs and values are and why they are so much better than mine?

If the divorce lawyer has an opinion about what’s best for me, it is likely to be based on his or her personal experience.

Unlike mental-health professionals who are trained to not impose their values on their clients, there is nothing in the standard law-school curriculum that provides lawyers with the same training.

Legal ethics encourage lawyers to do more rather than less work. For example, the American Bar Association’s Model Rules of Professional Conduct says the client has a right to “zealous” representation and the lawyer has a duty to provide the same.

Zealous? The Zealots fought to the death of the penultimate man. Is that what the client wants? Is it what the client needs? Who will be the last person standing — the lawyer or the client?

When a client agrees to pay a lawyer (and their staff) at an hourly rate, it creates a potential conflict of interest that can be far greater than the conflict of interest with the former spouse.

Preparing a case for trial as a way to settle is, by and large, the best way to generate attorneys’ fees.

Look at the words Preparing the case for trial ... No matter the jurisdiction, trials are relatively rare. For a family court, the percentage is typically less than 5 percent.

When a case is prepared for trial, the high probability is there never will be a trial. Trial preparation in the service of settlement is an intrusive way to provide high-cost representation and the delivery of services that will probably be unnecessary.

If divorce is a bandage, should it be removed quickly or slowly? Who decides?

Until our court began implementation of California Rule of Court 5.83, even those judges who thought it best for the parties to remove the bandage quickly allowed the parties to decide for themselves how to do it.

Before Rule 5.83, the average interval in South County Santa Barbara between separation and entry of judgment was 29 months, which was measured during times when the family law calendar was current.

Whatever the reason couples took so long, it had nothing to do with the court.

Rule 5.83 was enacted by the Judicial Council, which believes the bandage should come off fast.

The Judicial Council has directed the trial courts (including ours) to get rid of 20 percent of all divorces within six months of the date of filing; 75 percent within a year of the filing date filing; and 90 percent within 18 months of the filing date.

Once the assistance of the court is requested by a party filing a Petition for Dissolution, there is no question about the court’s power to decide how fast the case will proceed.

That power wasn’t used in the past, but because of action by the Judicial Council, the court is exercising it now.

The bandages are now going to come off two or three times faster than they would if the couple were left to make their own decision.

Once the case begins, the court oversees the parties, but that doesn’t mean they must submit to the wisdom of the Judicial Council.

The couple can take as much time as they need to reach a settlement they will both live up to — even if it’s not backed by the orders of the court. Finally, the petition is submitted with all the court forms necessary to turn their settlement into a judgment.

The idea behind the Oblique Divorce Strategies was to create content for a deck of cards (like the original Oblique Strategies used by musicians).

This column, strategy #53, ensures there’s enough material for 13 cards in each of four suits (plus a joker), so it’s time for something else.

My first columns or letters attempted to view divorce from the perspective of the parties as they experienced it. Then the point of view changed to that of a mediator and then to that of a lawyer.

The strategies are intended to help parties understand their situation in different ways. The next series will take the form of uninvited notes to a judge newly assigned to the family court from an ancient lawyer who has a lot to say.

— 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 protected]. Click here to read previous columns. The opinions expressed are his own.

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