It is hard to imagine a more conflictual time than when one is going through a divorce. On an emotional level, during a divorce people experience a range of emotions that they do not often experience on a day-to-day basis- betrayal, anger, sadness, disappointment, fear, mistrust, revenge, and hopelessness to name a few. On a financial level, divorce involves almost every aspect of one’s financial life. A divorce involves a division of marital property including one’s home, pensions, bank accounts, inheritances, and even personal property. Divorce also involves making decisions about health insurance, life insurance and financial security. And finally, and probably most importantly, during a divorce decisions need to be made about the children, their parenting schedules, education, health and support.
Unfortunately, most people did not have formal conflict resolution training growing up. As such, for the vast majority of people conflict is handled in two ways- either the conflict is ignored or the reaction is to attack back. This is not just cultural; to a great extent we are hardwired to have the “fight or flight” response. Thus, to address conflict head on in a non-adversarial manner is counter-intuitive. Mediation provides clients with a safe venue to discuss their divorce. Mediation however will not automatically undo years of ingrained behavior. Mediators and therapists can offer clients tools which will help them mentally and emotionally for the divorce process. Below are a few suggestions. At the end of this article, I have included a Conflict Self-Assessment tool as well as an outline of this article which you can give to clients engaged in the divorce mediation process.
1. Conduct a conflict self–assessment:
The purpose of a conflict self–assessment is to help the divorcing client get in touch with his or her own particular attitudes towards conflict. Where does the client fall in the conflict continuum? Does he shy away from conflict? Does she get an adrenalin rush from a fight? Knowing where you are in the continuum and how you feel about conflict is the first step towards being able to handle conflict effectively. Divorcing clients should consider filling out the attached self-assessment before their first mediation. If nothing else, it will help the client focus on the issue of conflict. More than that however, the first step towards handling conflict effectively is to understand how one reacts to conflict. If a person knows that she is conflict-avoidant, this awareness can be very helpful in assessing how the mediation is going. Is she agreeing because she really agrees or because she wants to avoid conflict? As with anything, having self-awareness is extremely valuable to the process.
2. Normalize conflict :
Conflict is not only natural but inevitable. There is no creativity without conflict. Ingenuity is by definition the act of questioning the status quo to come up with creative alternative. Often, mediation clients come into mediation thinking that in order to mediate they must agree on everything. Mediation however is the time to discuss areas of disagreement. It would not be helpful for a client to avoid addressing a conflict at mediation only to realize later that s/he has made a mistake and to regret it later on.
3. Conflict is opportunity:
Conflict can often lead to opportunity. Another way of thinking about it is to think of risk being a source of opportunity. It is often a conflict that leads to those transformative moments in mediation when, for instance, one participant apologizes or acknowledges something important. Conflict leads to dialogue. It is only through dialogue that the parties can become more enlightened about a particular issue. Discussions which skirt the real issues or avoid conflict, are not true or full discussions. Obviously, conflict is not always going to result in opportunity or transformation. However, in the right context, in a safe setting and if necessary, in a facilitated setting, addressing conflict has an enormous potential for positive results.
It might seem obvious, but the importance of listening cannot be overemphasized. When I was taking Tai Chi classes I recall the instructor continually repeating “Don’t forget to breath!” Of course we all know how to breathe. It is automatic. But do we really know how to breathe effectively. In Tai Chi as in any martial art, dance, sport etc. proper breathing is critical. Similarly, when engaged in a conflict with another person, listening is critical. However, truly listening is harder than it might seem. Think about what happens when you are involved in an argument. You make your “argument” and the other person responds. Typically what happens when the other person responds is that you are listening to what he or she is saying and thinking about your next response at the same time. By doing both of these things at the same time, not only will you miss some of what is being said to you but you do not take the time to process what is being said.
Consider the following exchange: Spouse “A” comes home and his spouse says “You know I really hate when you leave your shoes in the middle of the living room.” He responds, “Well, I’ll stop doing that when you stop leaving the dishes in the sink…” Does this sound familiar? The problem with this interaction is that neither person is really listening to what the other person is saying. The “dialogue” simply becomes a pet peeve ping pong match. Consider the alternative. What if instead of the ping pong match, the interaction went something like this. When spouse “A” comes home, his spouse says “You know I really hate when you leave your shoes in the middle of the living room!” Spouse “A” says “You know, I have some issues with some of your habits but I’ll tell you what, I’m willing to hear and address your issues today if we can agree to talk about my issues tomorrow.” Spouse “B” of course says “OK.” The conversation from that point on may be very short and may be limited to the simple fact that Spouse “B” hates when spouse A’s shoes are not put away. The conversation may continue with open and inviting questioning and interest from Spouse “A” and as a result it may become evident that Spouse “B” is under a lot of stress and it is not really about the shoes.
By simply agreeing that one spouse will listen and focus solely on the other person’s concerns and issues, the dynamic has completely changed. The spouse who comes in complaining about the shoes actually feels heard. The other spouse may not only help the other person feel heard but may help the other realize that it is not about the shoes or the dishes in the sink. True communication has begun. Instead of a ping pong match, the couple is now engaged in putting together a puzzle and cooperating in finding the missing pieces.
The simple act of agreeing that one person will have the floor and that both will focus on his or her issue completely and the other person will get a chance tomorrow or next week is the single most dramatic and effective and simple technique I know of to help people listen. There are advanced techniques which one can learn such as reframing, rephrasing, acknowledging etc. However, the act of simply agreeing to just listen is something anyone can do.
5. Looking Back:
What will the divorce process look like when you look back? It is often very difficult for clients to separate themselves from the moment and the anxiety, uncertainty and stress of the divorce. However, it is a very useful exercise for clients to spend some time thinking about how they will look back at their divorce. How will their children view the divorce? What will their relationship be like with their ex-spouse? Is there a possibility that they can view the divorce as a restructuring of the relationship rather than an ending of a relationship? How would each of these different attitudes have an impact on the children? In short, most people would like to be able to look back at their divorce and say that they did it in a sane, amicable and fair manner. When I ask people in mediation what their goals are for mediation, they inevitably say they want to get divorced in as amicable a way as possible. This takes work, but it is possible. The client however needs to be proactive so that he or she stays in control of the divorce rather than the process being in control of them.
In any endeavor, preparation is critical. Athletes prepare themselves physically and emotionally before athletic events. A businesswoman prepares herself before a presentation to a potential customer. People often come into mediation expecting or wanting the mediator to do the work for them. For anyone involved in negotiating a divorce or involved in divorce mediation, the above techniques will help the mediation and beyond.
People have many preconceived beliefs and attitudes about conflict. Some beliefs and attitudes help us resolve conflict creatively, but others act as barriers to conflict resolution. This assessment is designed to help you think critically about conflict, about your feelings when conflict occurs and about your own conflict mechanisms.
Answer the following questions being as specific as possible.
1. When I think about conflict, the following words come to mind:
2. When I am faced with conflict, I feel:
3. When I was growing up, people in my family usually resolved conflict by:
4. My usual method for dealing with conflict is to:
5. If I could effectively resolve conflicts, the following benefits would occur:
Preparing for Mediation
1. Before mediation, take the attached conflict self- assessment survey. 2. Conflict is a normal part of life. The key is not to ignore conflict but to resolve in a safe, productive and efficient manner.
3. Conflict is opportunity. As contradictory as it might sound, conflict can often be the source of a productive outcome. Resolution of conflict conducted in the proper way can lead to many positive results.
4. Listen. Take the time to really listen to what the other person is saying. Ask questions. Make it your point to really understand what he or she is saying and why. If you have a response, save it for another day when you will have the floor completely.
5. Looking back. If you are going through a divorce, pretend you are looking back at your divorce from 10 years in the future. What would you like the process to look like?
© Oran E. Kaufman, Esq. 2005
In the Spring of 2005, long-time commercial litigator and new mediator, Victoria Pynchon, engaged in a series of conversations with mediator and author Kenneth Cloke, (whose new book, Into the...By Victoria Pynchon