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Mediating Your Divorce When the Other Party Is a Bully

San Diego Divorce Mediation when the other party is a bully, Shawn Weber

I will often receive a call from a potential client interested in a San Diego divorce mediation, but who is a little apprehensive because their spouse has had a history of coercion, manipulation and bullying.  The question then arises as to whether mediation is really the appropriate venue to resolve the case.  Many of my peers may disagree with me, but a good mediator can successfully resolve almost any case.  Here are some points to consider for a successful divorce mediation when your spouse is a bully:

Check to make sure you have a well-trained mediator.

Mediating a case where there is a history of coercion or manipulation is advanced work and not for the faint of heart.  You need to make sure that your mediator has the skill, background and personality to ensure a level playing field.  It may be a good idea to bring up your concerns in a  caucus session so that the mediator is aware.

Make sure you consult with an attorney.

Mediation is actually without risk because the mediator makes no decisions in your case.  She can only help facilitate the discussion.  Nothing becomes binding until you sign the marital settlement agreement.  You would be wise, however, to work with advising counsel throughout the mediation process.  Come to mediation sessions armed with knowledge of your rights and what the law may or may not provide.  Under no circumstances should you ever feel pressure to sign any documents without first having had the opportunity to review it with your attorney.  If you continue to feel uncomfortable, you may want your attorney to attend mediation with you.

Consider hiring a divorce coach or a therapist.

You need to bring your best self to the mediation sessions.  To avoid falling into the same old patterns where you may have been manipulated or coerced in the past, it is wise to meet with a mental health professional knowledgable in divorce issues to prepare you for the sessions so that you can avoid getting your buttons pushed.  You can find divorce coaches by looking up your local Collaborative Practice group.  In San Diego, you can go here: http://www.collaborativefamilylawsandiego.com.

Demand Full Financial Disclosure.

In successful mediation, disclosure is essential.  Make no decisions without having had the opportunity to thoroughly review all material financial information.  A financial disclosure should also include back-up statements and documents.  Like in the cold war, it’s “Trust but Verify.”  You may consider having a financial professional such as a Certified Divorce Financial Analyst (CDFA) review the disclosures to uncover any “red flags” deserving additional investigation.

Stand Your Ground.

Bullies often bluster and threaten.  More often than not, the threats are empty.  If you prepare yourself, you need not be intimidated.  Often times, abusive relationship involve a sort of abuse dance.  You don’t have to dance anymore.  You are getting divorced.  You are intelligent.  You are certainly not stupid.  Stand on your own two feet and rely on your support system to be strong.

If there is physical intimate partner violence, think twice.

It is one thing to be a bit of a blowhard and a verbal bully.  It’s entirely different when the situation involved physical violence.  Do not trifle with domestic violence.  If that is happening, mediation is very difficult.  However, even in such situations, mediation can be appropriate with safeguards in place.  For instance, you can be in separate rooms at all times or you can demand anger management counseling.  In any case, make sure you have trained professionals who know what they are doing.  If for one moment, you do not feel safe, you can withdraw.  However, as a general rule, physical intimate partner violence presents a huge red flag.

San Diego Divorce Mediation, San Diego Divorce Mediator, San Diego Divorce Mediation, Solana Beach, Shawn Weber, San Diego Divorce Attorney

Top Nine Collaborative Divorce Tips for Success

I was pleased to have had the opportunity to contribute to the blog for the Collaborative Family Law Group of San Diego. I wrote about my Top Nine Collaborative Divorce Tip for Success. I have been very pleased to have gotten very good feedback on the post. Read it here and let me know what you think:

Top 9 Collaborative Divorce Tips for Success http://ow.ly/pwKft

High Conflict Divorce Tip #2: Avoid Reactivity

As the next installment in my series of tips for surviving a high conflict divorce, I want to focus on the issue of reactivity—or perhaps better said, over-reactivity.

Here is an email exchange that is very typical:

Email #1: Susie, I was hoping to take little Johnny to visit my mother in Montana for a week during the summer. As you know, my mom has been ailing a lot lately. She is only expected to get worse and I was just hoping to take Johnny to get to know her before she gets worse.

Email #2: Jim, your mother has done nothing but ruin our lives. We moved to California to get away from her and I don’t know why you would want to take our son around her. Besides, your father drinks and you know how I feel about that. Will you please think about what is in the best interests of our son instead of involving him in your twisted relationship with your parents?

Email #3: Why are you trying to involve my folks in our divorce. You always hated them. You are so selfish, which is one of the reasons we are divorcing. My father doesn’t drink any more than anyone else—certainly less than your drug addicted sister. I already talked to Johnny and he wants to visit his grandparents. You should follow his wishes! Why are you trying to get between him and his grandmother?

Email #4: You son of a $%#@! Why are you involving our son in this? You never cared about him. You are just using him as a pawn. I will go to court and do whatever I can do to stop you if you even think of taking him to see your abusive parents. I just told Johnny that he doesn’t have to go with you to Montana if he doesn’t want to go. He is already signed up for camp anyway and can’t go.

Email #5: F%&@ you! This is parental alienation and I am tired of it! I just retained a very tough attorney and she tells me that if you keep this up I will get sole custody and you will only be able to see Johnny with a supervisor. And don’t even think about keeping the house. My attorney tells me that you will have to pay my attorneys’ fees. Don’t even think of asking for support either. I will quit my job if you do!

I wish I could say that an email exchange like this is rare in my observations. Sadly, it’s quite common. Often times in high conflict cases, the parties have a tendency to feed off of each other. Negative energy has a way of creating more negative energy. We, as human beings, have a tendency to react strongly if we feel we are being attacked or if we are scared. Fear and anger are huge motivators. “Fight or flight” instincts kick in. Often these instincts lead us to involve the children inappropriately in adult business.

My advice is to resist the urge to pile on. We are not computers. This means that if our so-called “buttons are pushed,” we need not react in a prescribed fashion. For instance, my spouse speaking ill of my parents does not mean that I will then launch into a tirade of obscenities. Emails are an excellent way of measuring how high the conflict in situation can be because it is all there in print. However, most of the high conflict communications happen elsewhere. The same concepts apply though.

Here are some tips to be measured in your responses:

1. Court may not help. I can’t tell you how many times something bad happens in a case and the initial response of the wronged party is to file motions at court. I have to admit that early in my career, I was far more likely to have knee-jerk reactions to give ex parte notice and demand all sorts of remedies at court for every little perceived wrong. I learned quickly, though, that this rarely helps. Judges hate the tit-for-tat games being played out in their courtroom. If unchecked, dueling court motions can turn the courtroom into a forum for very bad and aggressive behavior. People write terrible, blistering affidavits full of he-said-she-said accusations that are rarely helpful to the court in making a decision. The judges become overwhelmed with the negativity and usually develop very bad opinions of both parties. I have also experienced that the most negative person at court is viewed the most negatively by the judge.

There are other options to resolve problems besides court. Mediators or mental health professionals can go a long way to diffuse problems and they can often do it faster. I just filed a motion in court the other day for a routine issue. It was set for four months away. You can often resolve problems with the help of ADR professionals and/or mental health professionals in a fraction of the time.

I am definitely not saying that Court should never be used. Sometimes, it’s the only way. But it should be used sparingly as a last resort. I generally don’t like to go to court unless I know I am going to win. Otherwise, my client should seriously consider keeping her powder dry.

2. First listen, carefully, THEN respond. Often times one party expresses a concern that causes them anxiety. Perhaps the person doesn’t say it carefully, especially if the person is upset. Often what the other party hears is only the portions that make him the most angry or fearful. In the email example above, Jim asked if he could take the kids to see his family. But all Susie heard was her own reaction relating to her bad experiences with Jim’s family. Jim, for his part, didn’t hear some of the legitimate concerns that Susie had about his parents and reacted only to what caused him anxiety. Rather than take the time to really ponder and think about addressing Susie’s concerns, he flew off the handle. Naturally, the conversation deteriorated because the couple was reacting instead of listening.

I frequently coach my clients to listen carefully first to what the other person is saying. I ask them to avoid getting caught up in the “background noise.” As in many divorces, communications can be accompanied by the emotions of hurt, fear and anger. Language can be unintentionally combative. Sometimes the language is quite deliberately combative. But if a person listens carefully and isolates the core concern that is driving the emotion and responds to the concern rather than the emotion, the communication can be less combative and thereby more effective. Here’s an example,

Jared: I am going to take the kids to see a ballgame with Linda and me.

Nancy: I can’t believe you’re taking the kids out with your girlfriend! She is why we are getting divorced! You are so selfish and disrespectful. She shouldn’t even be around our kids let alone taking them to a ballgame!

Now, at this point, Jared has a choice to make. First, he could fly off the handle and react to a perceived attack on his new love interest by his ex as follows:

Jared: I can’t believe you are so petty! The kids like Linda! You are just jealous. I wish you could get over that we are divorced and move on! You just want to ruin things for me and Linda!

If this were his reaction, I am sure you can see how unproductive the discussion will be. Perhaps what Jared should do in this situation is stop a minute and think hard about what Linda is telling him. Perhaps, after some careful thought and reflection, his response could be more like this:

Jared: Oh, I didn’t realize that you were uncomfortable with the kids being around Linda. Linda is really a nice person. But, I want you to know that she can never replace you as the kids’ mother. It is important to me that the kids eventually have a relationship with Linda because she is an important part of my life. Do you think there is anything that you and I can do to help the kids with the transition of my having a new relationship? This could help us in the future as well if you should ever start dating again.

Perhaps the second more careful reaction could be more effective. Jared recognized the concern that Nancy was having about introducing the children to his new love interest. Instead of attacking her back, he moved the discussion away from conflict towards a search for productive solutions.

3. Be careful about emails. The same concept applies to emails. A good friend and colleague, Bill Eddy, J.D., LCSW and co-founder of The High Conflict Institute, wrote a great article about Responding to Hostile Emails using the “B.I.F.F.” method. “B.I.F.F.” is short for “Brief, Informative, Firm and Friendly.” Rather than simply reacting to hostile email with a tirade of your own, Mr. Eddy suggests writing a carefully crafted response (if a response is even needed) to the angry email. You reduce the chances of a prolonged and angry dialogue by keeping the response brief and to the point. By focusing on providing the facts in a clear and concise way the email can be informative and thereby less inflammatory, you can make an effective communication without escalating the conflict further. By maintaining a friendly and courteous tone even when tempted to respond with anger, you deprive the other person of a reason to get defensive and keep responding. Finally, by clearly stating your position in a firm but non-threatening way you can effectively communicate your position. Again the goal here is to shut down the back and forth with clear and effective communication devoid of threatening and angry language. (For more information, see Bill Eddy’s book, BIFF: Quick Responses to High Conflict People.)

In summary, avoid reacting emotionally and reactively. Listen carefully to what is being said and try to discover the concern being expressed. Then, rather than attack back, turn the conversation towards possible solutions. This doesn’t work every time, but with patience, it can help. Remember, while sometimes necessary, court is rarely the best answer to resolve a problem. Try to work it out and when in need of help, seek professional assistance from a mediator or mental health professional.

Humans are an emotional species and much of divorce litigation is driven purely by emotion. Take time to review your own thought processes and reactions to challenges during your divorce. Ask yourself, often, if you are reacting out of emotion or out of thought. While emotions are a part of who you are, if left unchecked, they can block out reason and lead to sad and terrible outcomes. Don’t hesitate to seek out a mental health professional for coaching. It can be the difference between an expensive, high-conflict divorce or a financially and emotionally less costly, amicable divorce.

For more information and guidance on dealing with your high conflict divorce, contact Shawn Weber at 858-345-1616 for a free telephone consulation or visit www.BraveWeberMack.com .

Who Smiles and Who Cries When They Divorce?


This is a good artocle published by Judith Wallerstein, Ph.D. As a divorce attorney, I have seen a great many cases where one person wants out and the other wants to stay. Usually the person who wants to stay is stunned and in denial that the divorce is even happening. Sometimes it takes awhile for that person to reach acceptance­. This can effect the divorce settlement negotiatio­ns because a spouse in denial may give away things that he or she should not in hopes that they can save the marriage.
Read the Article at HuffingtonPost

Why I absolutely love Collaborative Practice for Resolving Divorce Cases.

Collaborative Practice offers the promise of peaceful negotiation with maximum professional support.

I have been involved in matrimonial law most of my career. I have seen some pretty awful stuff. People come to my office at the worst time of their lives: a family in pain; lovers betrayed. As the family is the very heart of our existence and interaction as men and women, the demise of a marriage thrusts real, honest people into some of the deepest and most exquisite pain we humans are capable of experiencing. Divorce professionals, for better or for worse, are given a front row seat to such sorrow and tragedy. We go through a lot of tissue. I have seen a coffee cup thrown across a room. I have seen strong, grown men cry. I have seen suicide attempts and suicide successes.


 

children, kids, custody, visitation, parenting, coparenting, collaborative practice


 

I have seen the serious collateral damage that a divorce war can inflict on the most innocent – children. I witnessed a divorce so terrible in its conflict that the children of the marriage were literally destroyed with depression, anxiety, drug addiction and self-mutilation that so often accompanies children of divorce.

Early in my career, I enjoyed the thrill of a battle in court. Litigation can be intoxicating for an attorney. I experienced the adrenaline rush of a nasty phone call to an opposing counsel, the delivery of a strongly worded letter on attorneys’ stationary and the excitement of combat in the court room. It is easy to allow oneself to get caught up in the warfare and become a part of the problem rather than a guide to a solution. In law school we are taught to be “zealous advocates” for our clients. The problem, however, is that in our zeal, we often overlook and destroy our client’s most important asset – the family relationships. Furthermore, “zeal” with its weaponry of formal discovery, motions, court work and general nastiness can deplete the family finances in such an extreme way that our clients are left bankrupt. Sometimes I feel like some attorneys are more zealous advocates of collecting more fees than they are of doing what is best for the client. It is actually called the “adversarial process” in that parties are purposely pitted against one another. Surely, encouraging couples to be adversarial rather than constructive and mutual when discussing delicate issues like parenting is terrible for a family. Don’t get me wrong, some cases require a court battle. However, the vast majority do not.

collaborative practice keeps people out of court

I have since recovered from the mindset that everything must be scorched earth. Towards the beginning of my career I did mediation, which was a great way to keep folks out of court and focus on solutions. The limitations of mediation, however, are that the parties don’t often have the support of advising attorneys in the room. As a neutral mediator, I am unable to advise what is in a party’s best interests. I can’t protect the interests of my clients. I always recommend that clients seek independent legal advice, but it is hard sometimes, if the attorney is not in the room. On the other side of the same coin, some advising attorneys misunderstand their role and drive what could otherwise be a simple mediated case into litigation.

In Collaborative Practice, however, the parties and their attorneys jointly sign an agreement that they will not be going to court. The agreement further stipulates that should either party choose to litigate, both attorneys are disqualified from participating. This frees the attorney from having to posture with every meeting. If the attorneys are not constantly concerned that they will have to litigate every issue, they are freed to focus on solutions rather than looking for more conflict. The attorneys’ roles switch from zealous advocates to “legal educators” and “counselors at law”. The power shifts away from the attorneys to the parties. The parties decide what the agreement will be and the attorneys merely provide advice regarding the law.

Additionally, the parties can bring in additional professionals to work on their Collaborative Practice team. Mental health professionals can be utilized as divorce coaches or child specialists to assist with the hugely emotional issues in every divorce case. A neutral financial professional can be brought in to assist the parties with understanding the money issues and for planning for the future. As an attorney, I am then relieved of the burden of having to act (incompetently) as an emotional support, child custody expert or as a financial guide. Often these additional professionals will have a lower billing rate than the attorneys so tremendous economies of scale can be achieved. You pay money to the people most qualified to give the particular service.

I enjoy Collaborative Practice as a human being as well. It is wonderful to work with a collaborative practice preserves familiiescouple to transition their family in the least destructive manner possible. I love collaborating with professionals from other disciplines to help the family find the very best solutions for their situation. Collaborative Practice is much more mutually respectful, civil, child-centered and humane than traditional litigation. Although divorce is always painful no matter which model of dispute resolution is used, couples can leave the collaborative divorce process feeling good about their futures and knowing that they found constructive solutions for their families.

For more information about Collaborative Practice, contact Shawn Weber for a consultation at 858-410-0144 or view:

Collaborative Practice

Collaborative Divorce: A Safe Place

See also:

Collaborative Practice California

Collaborative Family Law Group of San Diego

International Academy of Collaborative Professionals

 

collaborative practice, san diego divorce attorney, collaborative divorce, solana beach divorce attorney, Shawn Weber

Collaborative Practice Public Service Announcement

Here is an excellent video with information about Collaborative Practice.  I am a firm believer that Collaborative Practice is a better way to divorce.  By attorneys, mental health professionals and financial professionals working together, a couple facing a divorce stands a much better chance of transitioning their family in a respectful way that is better for the kids and the couple’s finances.

For more information about Collaborative Practice in California, go to www.cpcal.com.

To schedule a consultation for a Collaborative Divorce, contact attorney Shawn Weber at 858-345-1616 or visit our website at www.BraveWeberMack.com for more information.