Search Site

Let it be or beat a dead horse

When it comes to conflict, our body naturally has two responses. Fight or flight. When it comes to dealing with a problem, there are other ways to deal. Fight, deal, cooperate or flee. When it comes to a divorce, you can’t run away and fighting only makes things worse. This doesn’t mean agreeing on everything, it just means agreeing to find the best scenario for all parties.

“A person may cause evil to others not only by his actions but by his inaction, and in either case he is justly accountable to them for the injury.” — John Stuart Mill, On Liberty

Every single thing we say and do are actions which we have chosen to make. What we don’t say and do are the result of our inactions, which are also choices. Whether those choices are conscious or unconscious, they are still choices.

The following is an excerpt from a chapter I co-authored with Jeremy S. Kossen in the recently published book titled Putting Kids First in Divorce: How to Reduce Conflict, Preserve Relationships and Protect Children During and After Divorce:

Start With The End Goal in Mind

When children are involved, you can’t ‘win’ a divorce or aspects of a divorce, regardless of how you believe such a ‘win’ may feel. That feeling is typically short-lived, and the win-lose paradigm in a divorce tends not serve your or your children’s best interests in the long run.

A divorce doesn’t end the chronic conflict between two people who will be tied together for life through their children. For the benefit of your kids, doesn’t it make more sense to resolve or otherwise manage conflict with your ex, than to exacerbate it? …

When a parent operates from a position of anger or resentment, predictably, they disregard the indelible impact their decisions have on their children. No loving parent wants to inflict pain on their children, but they often unintentionally do just that. The satisfaction a parent may experience through short-sighted decisions is no more than instant gratification–choosing that immediate sensation over the long-term consequences. Instead, consider a long view of what you want your life to look like.

Three, five, or ten years from now, do you want a life filled with:

. Conflict and animosity

. High-stress

. Regrets

Or, do you want to have a life in which:

. You can–if not be friends with your ex–at least be civil and cooperative

. Your actions and behaviors provide positive modeling for your children

. Your children are well-adjusted, happy and free of resentment because you acted in alignment with their interests and needs.

When going through a divorce filled with chronic conflict, how do we manage our emotions and control our behaviors in ways that ensure our children endure as little pain as possible? Start with the end goal in mind: not a month or a year from now, but many years from now.

To help you align your actions with your personal values and long-term goals, visualize the ideal co-parenting relationship and how it would look three, five, or ten years down the road. Then document this vision in writing. Save your writing somewhere you can easily access for future reference. It is, in essence, your vision statement. When your co-parent does something that angers you (or you’re feeling frustrated), before you react, re-read your vision statement. As you contemplate how to respond, ask yourself how that would align with your personal values and long-term goals.

That excerpt is from our chapter titled “Choose Cooperation Over Combat.”

The law (as practiced) is all about winning and not about the truth.

Generally speaking, the law itself is neutral – lawyers and their clients turn it into a win/lose dynamic.”

The problem is that a win/lose dynamic is combat and lawyers are trained for just such combat. They are not trained for cooperation and the personality types attracted to the field tend to be competitive, at best.

For quite some time, I’ve been saying, “You can only give what you have and teach what you know.” Generally speaking, it is a mistake to expect anything other than combat from a litigator because that’s both who they are and how they’re trained. Since the default process in the United States for the handling of divorce and family law is litigation, the typical attorneys involved are litigators.

Another thing I’ve said for a very long time is “Outcomes are typically determined by the way in which the ‘game’ is designed.” In fact, the Introduction to Putting Kids First in Divorce: How to Reduce Conflict, Preserve Relationships and Protect Children During and After Divorce opened with that quote.

If you want to achieve a more desired outcome, design your “game” differently. A good start might be by consulting with a well-trained and highly skilled mediator from the outset, rather than with litigators.

You always have a choice.

Of course, people can’t make wise choices when they don’t make the effort to learn about their various options. To add insult to injury, there is plenty of false and misleading information in the public realm about mediation. For clarification purposes, “mediation is not about ‘making love’ and mediators are not scriveners.”

In her book Rising Strong, Brene’ Brown, Ph.D., LMSW says, “You have to know a little bit about something to be curious about it.” She quotes George Lowenstein as follows: “To induce curiosity about a particular topic, it may be necessary to ‘prime the pump’?–to use intriguing information to get folks interested so they become more curious.”

For years now, I’ve been attempting to “prime the pump” of curiosity by publishing articles with “intriguing information” and it hasn’t yet seemed to accomplish my desired result. I believe that this has a great deal to do with people’s refusal to take responsibility for their actions and inactions.

Anderson Cooper recently called Donald Trump out for saying he used “the argument of a five-year-old.” The argument to which Anderson Cooper was referring was, “Look, I didn’t start it.” My spouse is a first-grade teacher who works with kids between the ages of six and seven, hears such “arguments” all the time, and was in complete agreement with Anderson Cooper.

It’s about time that people start taking responsibility for their choices and the ensuing consequences of those choices.

I recently received the following email from a potential client that was referred to me by a psychologist and it literally caused me to feel as though I am living in the Twilight Zone:

Based on what you’ve said and a little other research, I think my husband and I just need to get separate attorneys. I don’t think we need a mediator because we’ve already discussed how we want to handle things and are pretty much in agreement. We just need attorneys to advise us of anything we may not be thinking of and then to handle the paperwork and court process.

After sharing that comment on Facebook, Gary Direnfeld, a marriage and family therapist and recognized expert on parent-child relations and child development, commented as follows: “And the advice they receive runs the risk of polarizing them and setting them up for litigation.”

Someone else commented that it “Sounds like something that belongs on Saturday Night Live. Unreal.”

When I shared this with a number of my mediation colleagues over lunch, they all said they receive similar responses from potential clients all the time, as do I.

Meanwhile, Milwaukee County Family Court Judge Michael Dwyer is only the most recent Family Court Judge to advocate that divorcing couples mediate. According to Judge Dwyer, “The court system is set up for two people to fight, and fight as long as possible — which is expensive…. [Moreover,] “we know for sure that conflict, parental conflict harms children and the harm is significant and permanent.”

It is parental conflict and not divorce itself that harms children. Parental conflict can and does occur in intact marriages as well.

It also bears mentioning that shared and equal parenting presumptions are not the solutions to custody battles or decreasing parental conflict. Custody battles and other battles in family law are symptoms of something else. If you merely try and address symptoms and not the ultimate cause, new symptoms pop up. The cause has to do with the failure to address those things that led to the breakdown of the marriage. Ignoring things that are too big to be swept under the rug merely causes them to fester. Those who advocate for shared and equal parenting presumptions either have a hidden agenda or just don’t understand the nature of human conflict.

Allow me to repeat my opening quote for this article:

“A person may cause evil to others not only by his actions but by his inaction, and in either case he is justly accountable to them for the injury.” — John Stuart Mill, On Liberty

One definition of evil is “causing harm or injury to someone.”

The following is a quote from my colleague, Wallace Francis’ website:

Attorney Mark Baer wrote this article in 2011 which I found both wise and compassionate in its description of the divorce process. He states, and I agree, that the adversarial process destroys families and that the family courts are the worst place for couples undergoing marital discord to work out their problems. Coupled with that is the reality that people pay for ‘pit bull’ attorneys in order to destroy their former spouse and former loved one, and if people weren’t paying for these services, there wouldn’t be a demand for them. So when people criticize the system, and the attorneys, they should perhaps also take a good look at themselves.

People don’t like to take responsibility for the negative consequences of the choices they make and people can’t learn from mistakes they don’t admit having made.

I realize this statement will not be well-received. When I’ve said it before, I’ve been told that I “have a lot of nerve blaming the parents.” Other comments were as follows:

Mark – you must be joking. Family law is fraud and collusion for money. Shame on you. I hope you get struck by lightening”; “Once again, the attorney blaming the client for all the ills causing the acrimony in the divorce. No, the attorneys had NOTHING to do with it! The judges had NOTHING to do with it!! Not!!!!!!!! … I can’t stand family law attorneys who throw the blame game on the clients. Family law attorneys know the law and use it to manipulate their clients by not telling them what the law is, or what rights they have.

In fact, on October 24, 2014, Families Civil Liberties Union posted the following on its Facebook page and on Twitter: “Mark Baer states that families are to blame – not family lawyers. Call him toll-free and let him know what you think!”

People need to be protected from themselves because they are frequently their own worst enemy. A significant reason for such bad decisions is the default process for dispute resolution put into place by our government. Other countries, Australia for example, have changed the default in family law cases to mediation, which they now refer to as the primary resolution process and litigation is the alternative. The government put such defaults into place and if poor decisions are made because people are predictably irrational, those defaults can be changed.

Even if people want to blame the system, the system is put into place by our elected officials. We get the elected officials we vote into office and the government we deserve. It’s about time that people start taking responsibility for their actions and inactions, both of which are choices. It is also a choice to shoot the messenger for pointing out the negative consequences of such choices.


Leave a Reply

Your email address will not be published. Required fields are marked *

What Does An AV Rating Mean?
An AV® Rating, signifies that the lawyer has reached the heights of professional excellence. He or she has usually practiced law for a number of years, and is recognized for the highest levels of skill and integrity.

Office Location
  • Scottsdale Office
    8501 N. Scottsdale Road
    Suite 155
    Scottsdale, Arizona 85253
    Phone: 480-483-2178
    Fax: 480-367-0691