In the next series of “letters” I’ll use a variety of stories, narrated by the lawyer, to explain how a divorce unfolds in predictable stages that come in a predictable order.
• • •
Paul arrives for his second mediation session on time at 10:30. We wait together for five minutes, but his soon-to-be-ex, Rose, hasn’t arrived.
“Do you think she’s coming?” I ask.
“I talked to her yesterday afternoon. She tried to snap my head off over the phone, but she knew we had this appointment today.”
As long as the door to the office was open and Rose was only five minutes late, I wasn’t worried that Rose would think we were conspiring; there wasn’t enough time. However, if she found us together any later — even if the door was open — she might find it easier to worry about the possibility of being ganged up on (rather than reflect on her own tardiness and what it might imply).
I asked Paul if I could get him a cup of coffee. He said I could, and he gave me his best guess on what Rose would want. At 10:40 I saw her arrive at the building, together with what I’d call an “entourage”: an infant she held to her chest with one arm and, in her other hand, a leash attached to a beautiful and obedient golden retriever. I watched her walk down the hall and enter my office; I joined them before they could start a conversation.
These two were not going to be easy. The separation had been instigated by Paul within weeks of the birth of his daughter. Naturally, it knocked the wind out of Rose. At our first session, Paul insisted that he wanted to get it “over with,” seemingly oblivious to the statistics I had shared at the Introductory Session. That session is informational, and I don’t charge for it, which is probably why so many people don’t remember what I said and don’t read the materials I’ve carefully assembled for them to study later.
At the first session, Rose said she was ready to go forward with “whatever Paul wants.”
I asked if she thought there was a chance that the marriage could be saved. Paul said, “No!”
“Paul, I didn’t ask you, I’m asking Rose. During the course of a session, any number of things can be said and a number of things can happen. May I have your ongoing permission to ask you if something said or done moves the case toward its conclusion?”
“I guess.”
“So when you answered the question I asked Rose, did we move toward or away from a conclusion?”
“Away … I guess.”
“I agree. I’ll ask Rose again. Do you think the marriage can be saved?”
“You heard what Paul said.”
She insisted that she wanted to go forward. Paul was given an opportunity to outline the issues, which were quite simple, but neither the complexity of the case nor the amount of money involved predict an easy or difficult, brief or extended divorce. Divorce is essentially psychological, and the emotional experience of the parties determines what happens.
I mediate by generating a hypothesis about the nature of the parties’ interpersonal transaction. My default is to do nothing until the conversation turns negative or until it moves away from the items on the agenda — items we’ve agreed to at the outset of the meeting.
Now, for the second session, Rose has arrived 15 minutes late with her baby and her dog. It didn’t look like she’d come to do business.
Once seated, I offered her the cup of black coffee, which is what Paul told me she might want. She doesn’t want it. “I always take sugar and milk. Did Paul tell you that I drink coffee black like he does? We’ve been married for three years. We’ve had a baby together, and he doesn’t even know how I like my coffee.”
It would have been nice if I had sugar and cream in the cup I got for myself, but that wasn’t the case so I slipped her question and addressed the obvious.
“Here we are, and before we work on today’s agenda, I have to ask you Rose, what’s with the beautiful baby and the gorgeous dog?”
She was ready. She answered my question while looking at Paul. “I wanted him to see what he’s giving up. I’m alone. There’s no one to help me; who’s going to take care of the baby?”
I knew her parents and sister were in town and that Paul came from a big family headed by a mother who had already announced her disapproval of the divorce (and of Paul). She told Paul (and Paul disclosed in the first session) that Rose would always be his mother’s daughter and that his mother would always be there for “her baby girl.”
Neither Paul nor I suggested where she could leave the baby for a couple of hours. This wasn’t going to be a conversation about facts. Rose was here to emote, so I could let her do it or I could call off the session.
For me, the next move belonged to Rose. I suspected that Paul feared there was nothing he could say that wouldn’t elicit a ferocious reply, and I suspected he was right.
Silence is one of a mediator’s most effective tools. It gives the chance for the parties to relax enough to speak honestly about what they believe to be true. Or, occasionally, silence is an opportunity for either or both to prepare an assault. That’s what happened here.
“So, Paul, what are you going to do with us?”
“I’m going to try to take care of you.”
“Oh, you’re taking care of us by leaving us for that tramp you’re … well, whatever you’re doing with her.”
“I’m not leaving for anyone. I’m leaving because we, as a couple, are toxic, so I’m getting away for your sake and the baby’s sake.”
At this point I decided to let Rose blast Paul. He left her when their baby was only 6 months old, and it wouldn’t do any good to attempt to bottle her up. Emphasis should be on the word “attempt.” Now that she was under way, I don’t know how I could have stopped her. Research suggests that at some point “venting” starts to kindle itself, and it was my job to intervene before that happened. While observing the interaction, I had to figure out how I could stop her if I felt it was necessary for the sake of the mediation process.
Her sarcasm sounded well-practiced. “Well, Paul, I didn’t realize that. I didn’t know that when I had your child. You are so good to us. Do you want to take this baby and raise her in a non-toxic environment? Your girlfriend is so young that it would be unseemly for her to give birth to a baby. Oh! And you don’t care for pregnant women, so maybe she could just raise this one. She cries and she wets and she poops real poop. Sometimes she throws up. Your girlfriend could have a real doll.”
Both Paul and I remained silent.
Rose continued, “You are so articulate. I guess I’m the one who has to figure out what we are going to do. It’s a mess, Paul. You have created a mess, and I’m the one in the middle of it. Let’s see, what could you do to help? Oh! I know. You take the dog, and I’ll try to take care of the baby. What do you say to that?”
“That’s crazy. I live in the smallest, cheapest apartment in town. I might be able to have a goldfish but not a golden retriever.”
“So now your living arrangements are my problem. That doesn’t work. That does not work. You have to take the dog — now!”
“Rose, I can’t do it. I just can’t do it.”
“You’ll have to find a way. I’ll give you until tomorrow morning. If you haven’t picked her up by then, she’s going to the pound.”
Paul looked at me and said, “That’s the way it is. That’s what I can’t stand. If it isn’t her way, someone has to go to the pound!”
My mind was divided. Continuing the day’s mediation wasn’t going to be productive. The session had been very brief, but it was time to stop. For the sake of the mediation, I needed to be able to explain how something positive had been accomplished. That was one thing; the other was the dog called “Popsicle.” It seemed clear that Paul couldn’t take her, and I feared that Rose might feel compelled to send the dog to the pound to punish Paul and to establish that she meant what she said.
Your friend,
Bucky
— 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 info@burkefamilylaw.com. Click here to read previous columns. The opinions expressed are his own.