Tuesday, June 19 , 2018, 5:40 pm | Fair 71º


Brian Burke: About Your Divorce (Letter 112) — Sometimes You’re the Windshield ...

Oblique Strategy #9 — “Sometimes you’re the windshield and sometimes you're the bug.”

For years I began a law school class by asking the students to pair off for rounds of “Rock-Paper-Scissors” (R-P-S). Without any explanation, I collected the results for that evening’s competition and ignored the questions: “Why are we doing this?” and “Will this affect my grade?”

Repeated rounds of R-P-S provided a mutual, concrete experience of a competitive activity with mere seconds between the beginning and end. If I’m Rock and you’re Paper — that’s it. There’s no appeal, no replay. The more you play against an increasing number of people, the more apparent it is that strategy is of dubious value and the outcome is random.

The focus of law school and legal practice is on control-of-outcome, so a property of all the situations is a controllable outcome.

Yet, some of the most significant things that happen over the course of a lifetime are beyond control, which creates a set of opposing hazards: we may adopt a core belief that there is something about our being that deserves the effect (positive or negative) of a random event or we may be unable to accept the (usually negative) effect of a random event.

A major premise is that healthy and lasting resolution of post-marital conflict is built on the Overlap of each party’s notion of “fairness.” This is what typically happens by the end of the natural grieving process. On occasion the parties get stuck and there is not sufficient overlap of values with which to fashion a mutually acceptable solution.

There is a differential diagnosis that can be made between being Stuck and The Stall. Neither is intentional but The Stall is normal and will disappear with the passage of time. When the parties are Stuck, they stay Stuck until either or both change beliefs and values to the extent necessary to create the Overlap. Such a change requires effort and can be promoted by a mediator working with the overt dynamic of the case or by personal counseling, which works with the underlying psychological dynamics of either or both parties.

There are three signs that the apparent impasse is merely a normal Stall. They involve timing, magnitude and complexity.

» Timing. The Third Stage of the Kübler-Ross/Yale Grief Model is “false bargaining.” The parties have been able to identify all of the significant issues. They tentatively agree on most of them and have provisionally agreed – either tacitly or expressly — on a viable structure for the settlement. In my practice this point is reached when I know enough about the probable settlement to prepare the first draft of the Marital Settlement Agreement.

» Magnitude. From the subjective perspective of the parties the Stall involves a matter of enormous significance, while from the outside the matter in controversy is small or insignificant. This is how a settlement “breaks down” over the distribution of the “Green Chair in the kitchen” or “the garage door opener you took when you left (for which you have no possible use) and yet now you deny having it.”

» Complexity. From an exterior perspective the solution is simple. From the perspective of the parties involved, there is only deadlock. If a way out is suggested from the “outside” it is rejected and tainted. If it is imposed, disagreement goes so deep that it can’t be fixed from the outside (e.g., a disagreement about what’s in the best interest of the children.)

The Stall indicates that the couple is slipping into the final stage of grief — Depression. They shouldn’t attempt to complete their business with each other. The person at the beginning of divorce is different from the person at the end. The transformation is completed during this situational depression, which is a time each party can “feel his way into” what life will be like under the terms of the provisional agreement. When the Depression lifts, the Stall dissipates. The “Green Chair’s” emotional charge disappears and it once again becomes a green chair that could be sold in a garage sale for $5.

In contrast to a normal Stall, parties who are Stuck reiterate the same futile attempts to deal with one or more issues apparent from the outset and originating at or before the beginning of the marriage.

Consider Ann and Buck who were married for 20 years. Ann stayed at home to raise their three children. Buck finished school after marriage and then figured out how to earn a lot of money. When Buck discovered Ann’s infidelity, he left the family home where two minor children continued to live with their mother.

Buck’s first lawyer — and also his second lawyer — explained that Ann’s infidelity is of no interest to the court. He can agree to the payment of spousal support for a substantial period of time or he’ll be ordered to do it. Buck is overwhelmed by anger and rage he attributes to Ann’s betrayal and says that he will go to any length to avoid paying spousal support.

Buck’s attitude is understandable, but it should diminish during the first year. However, 18 months later, he is as overwhelmed by his sense of betrayal and victimization as he was on the day he left the family home — and he’s still determined to avoid payment of support regardless of the consequences to himself. Buck is Stuck; the case is Stuck. This is not a self-correcting Stall. It’s also extreme behavior more common in novels than in my experience as a divorce lawyer.

We understand Buck’s feeling at the outset, but we grow impatient when he can’t get past the basic fact that IT happened to him.

We might say, “Damn it, Buck, in one way or another 'IT' happens to everyone.”

Buck will receive less and less commiseration from those who care about him, and he will become more and more likely to pay people to agree with him. For me, Buck is a character from fiction and not from practice. Yet, he seems familiar, and he’s easy to understand because he can tell us about his unrelenting psychological pain. We know that his attitude could persist for life and that it could be lethal.

We’ll quickly learn that it’s not effective to say directly, “Buck! Get over it! You’re killing yourself.”

                                                                        •        •

Because his rage has continued for so long and, according to his own report, it hasn’t diminished, I don’t know if there’s anything that can help Buck. This Oblique Strategy is for someone with a case of “Buck Lite” who wants to break out of the jail created by his or her own thinking.

Play 10 rounds of R-P-S with 10 different people. It can’t hurt and the hundred rounds will take less than 15 minutes to complete. R-P-S doesn’t interfere with the exercise of free will, but it may get through the defensive thinking that protects the self-righteous and self-destructive sense of victimhood, and it makes available the explanation that occasionally random events can occur as part of interpersonal experience.

It changes the question from, “What happened to me?” to simply “What happened?”

In terms of R-P-S the answer is, “Paper covers rock, etc.”

The same idea is more poetically expressed in The Bug written by Mark Knopfler and performed by Mary Chapin Carpenter, who sings: “Sometimes you’re the windshield and sometimes you're the bug.”

Next column: Oblique Strategy #10 — Can you describe the way you apologize?

— 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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