Thursday, March 22 , 2018, 4:46 pm | Fog/Mist 58º


Brian Burke: About Your Divorce (Letter 89) — Abdülaziz I and Us?

Dear Pinky and Spike:

Nicholas I, Napoleon III, Abdülaziz I and us?

How is a dispute between France and Russia over the key to the door to the Church of the Nativity in Bethlehem like a divorce? More particularly, how is it like the refusal of a client (from many, many years ago) to deliver documents to which his wife was entitled to immediate possession unless she first delivered to him the garage door opener — which she took when she vacated the family home where he still lived?

In both cases, there is a material object small enough to hold in the hand, and its value is nominal. Both objects opened doors. Both disputes were silly and not the kind of thing normal people during normal periods of their lives bother with. To draw a deeper comparison requires a story:

England dispatched Stratford Canning to Turkey to offer his services as a mediator. Canning was smart and tough, and he waited until the hour was ripe for his personal intervention.

The intervention was direct in that it proposed the terms of a solution to a manufactured problem. It was made to neither the Russian nor the French diplomats but to the Sultan (Abdülaziz I) who was caught in the middle. Canning suggested that no attempt be made to physically wrest the key away from the Catholic monks. Instead, he suggested that an Orthodox monk be designated “doorkeeper” and the church be made available to Orthodox Christians immediately after sunrise. They were to be followed by an Armenian service, after which the Latin Catholics could worship. The Sultan was to explain that this schedule was based on the Orthodox habit of early prayers and not from any claim of precedence.

The Sultan appreciated the way Canning’s solution sidestepped the political and religious issues but continued to be buffered by vehement demands and military maneuvers involving the huge Russian army and the French fleet. Once he offered an objectively sound solution, Canning’s task was to encourage the Sultan to publicly adopt and enforce it. Canning succeeded in performing this operation by what he didn’t do. He didn’t harp on the Sultan, he didn’t attempt to affect the positions of the disputants, and he didn’t attempt to influence the Sultan’s advisors.

Canning largely withdrew from the court. When he re-entered the fray, it was only by direct contact with the Sultan, whom he repeatedly advised to be “deferential, still courteous, still willing to go to the very edge of what might be safely conceded, but to otherwise stand firm.”

He made it known that he had not been sent from London with any power other than wise words. He waited until the issues were close to resolution before confiding to only the Sultan that “in the event of imminent danger, he [Canning] had been instructed to request the Commander of Her Majesty’s forces in the Mediterranean to hold his squadron in readiness.” In a word: nothing.

As with most mediations, Canning’s power was limited, even illusory, but he made it real with the shrewd timing of his intervention, his refusal to get caught up in the day-to-day drama (which would be the equivalent to modern and insane rapid exchange of email), delay in disclosure of his access to power and his decision to confine his important communications to the Sultan rather than with the disputants or the Sultan’s usually powerful advisors.

A refusal to accept a neutral solution to such a minor problem would have turned world opinion (whatever that meant in 1853) against both Russia and France and would cost either support for military action.

Like a divorcing couple upon which a solution is imposed, a new issue emerged before the solution to the first could be put into place. The cupola of the Church of the Holy Sepulcher at Jerusalem was “out of order.” English churchman were used to arguing that they should not be burdened with the entire cost of keeping sacred buildings in repair, but Canning realized that Christians in Palestine were “willing to set the world in flames for the sake of maintaining their rival claims to the honour of repairing churches.”

Here the Sultan imposed a solution by making himself responsible for providing the means for repair and by yielding to the demand that the work would be under the control of the Greek Patriarch of Jerusalem.

Historian A.W. Kinglake says the questions of the Holy Places was settled on April 22, 1853, and concludes this part of his seven-volume History of the Crimean War:

“Thus, after having tasked the patience of European diplomacy for a period of  nearly three years, the business of apportioning the holy shrines of Palestine  between the Churches of East and of the West was brought at last to a close. The question was perhaps growing ripe for settlement when Lord Stratford reached Constantinople; but whether it was or no, he closed it in 17 days.”

                                                                        •        •

I never met Lord Stratford Canning but, from what I’ve read, my sympathies are with Czar Nicholas. He was crafty, calculating, cold, conniving and cunning, but he appears to have gotten the job done.

I’ve tried, and I have come to the conclusion I can’t employ the style of any particularly successful mediators because they each have personal attributes that form the foundation of their practice. Without those attributes their style is empty gesture. Canning was a cunning, cold fish with some sort of authority granted by what was then the biggest empire on Earth.

I had nothing like that when I had to respond to my client’s very bad and strongly held idea to hold on to documents that should be given to his wife as a way to compel her to give him the opener to their garage door.

This was one occasion when I spoke without thinking and liked what I said, and then I said more of the same. My client said for the second time that he wasn’t going to turn over the documents he was legally required to deliver. I didn’t wait to hear him give his reasons again.

“I guess you could play that kind of hardball. I’ve already explained that hardball is a bad idea in a divorce. Once the game starts there’s no way to accurately predict who is going to get hurt. Lawyers can predict that neither party will feel like a winner and both lawyers will 'earn' fees much greater than they would from any settlement.”

He no doubt told me why I was wrong in this particular instance. He would have doubled his defenses if I tried to argue with him. So instead I said, “When a patient has a fever, it’s an objective sign that he’s sick or still sick. If treatment does nothing but suppress a fever, it’s worse than useless. It’s done nothing to combat the cause of the fever, and it’s eliminated the convenient way of tracking the course of the disease.

“That garage door opener of yours — the one you say your wife took even though it is of no use to her — is serving as a fever thermometer; it's working for your benefit. Her willingness to return it to you without further request, demand or threat is measuring her readiness to work seriously on settlement. It’s an indicator of whether the case is or isn’t ripe for settlement.”

Today I might liken his case to the conflicts preceding the Crimean War, and I’d point out that it took, according to Kinglake, “about three years” to decide who got the key to the church door — and that the average interval between physical separation and entry of judgment in a South County Santa Barbara divorce is about 29 months.

He would have replied, “Oh, ours won’t take that long.”

I would think there was nothing about the facts of his case suggesting it would take longer than average, but I knew of nothing that would make it go faster. Instead I said, “Her possession of your garage door opener is like the red button in a turkey. Do you know what I’m talking about?”

“Yes, we had one of those for a Thanksgiving dinner.”

“The red button pops out when the turkey is done cooking. When she’s ready to give back the garage door opener, it will be the equivalent of a popped red button. The divorce is the turkey.” To preempt a bad ending for this analogy, I asked him, “Was your turkey done cooking when the red button popped?”

He said, “I don’t know or I don’t remember. Did yours work?”

I said, “I don’t know if we’ve had one. I do the carving. Actually the boys are starting to carve, but I don’t have anything to do with the buying and cooking of the turkey.”

He said, “I carve, too. We had a fairly raw Thanksgiving turkey when we were first married but only that once. It would have been before the red button, so I have to say it worked for us.”

I agreed, “I don’t remember an undercooked turkey, and there’s been talk about red buttons, so I’d say that if we’ve had one it worked.”

My client delivered the documents to his wife’s lawyer the next day and we stopped talking about red buttons and garage door openers.

                                                                        •        •

When working with couples, no matter how brilliant the solution, it doesn’t work when imposed by a mediator.

I don’t know if this is also true for international relations, but it’s fair to say that the quality of Lord Stratford Canning’s mediation became apparent on March 27, 1854 — less than a year after his "settlement" — when France and England declared war on Russia and the Invasion of the Crimea began.

Your friend,

— 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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