Denial is a natural impulse that can shut down litigation, but there are many ways to assure that the process – and the people caught up in the process – stays on track.
By Elisa Reiter, Family Lawyer, and Daniel Pollack, Professor and Litigation Consultant
Denial is a natural human coping mechanism. When faced with dysfunctional families, divorce, or custody disputes, sometimes litigants react with laser focus, face their impending lifestyle changes, and get organized. Others simply engage in denial as though the dilemma underlying the case is not real. How can denial impact a family law matter?
In a recent article in The Guardian, Dr. Bessel Van Der Kolk’s work in The Body Keeps the Score: Brain, Mind, and Body in the Healing of Trauma (Penguin Publishing Group, 2015) was summarized as follows:
“His thesis centers on trauma: the urgent work of the brain after a traumatic event is to suppress it, through forgetting or self-blame, to avoid being ostracized. But the body does not forget; physiological changes result, a ‘recalibration of the brain’s alarm system, an increase in stress hormones, an alteration in the system that filters relevant information from irrelevant’, as he says in his book. The stress is stored in the muscles and does not dissipate. This has profound ramifications for talking therapies and their limits: the rational mind cannot do the repair work on its own, since that part of you is pretending it has already been repaired.”
How Should a Family Lawyer Deal with a Client in Denial?
What is divorce, and the associated litigation, if not traumatic? How to best deal with those parties who remain in denial of impending lifestyle changes? Lifestyle changes that impact the family dynamic can be stressful, and lawyers, social workers, psychologists, and other professionals need to be mindful of the impact of stress on the participants. In the Guardian interview, Dr. Van Der Kolk is quoted as saying:
“We define ‘trauma’ as an event outside the normal human veins of experience… At least one-third of couples, globally, engage in physical violence. The number of kids who get abused and abandoned is just staggering. Domestic violence, staggering.”
Denial and Attachment Theory
Van Der Kolk’s work relies in part on attachment theory. In “A Quick Guide to Attachment Theory,” Professor David Shemmings elucidates:
Attachment theory was developed by John Bowlby, a British psychologist, partly as a result of the experience of hundreds of thousands of children during the second world war who were separated from their parents and evacuated to safer areas of the UK. His work on the importance of parent-infant bonds revolutionised childcare around the world… An attachment is a precise term: the notion of a safe haven which, when available, becomes a secure base from which to explore the world around us. Then when we are separated from our secure base we become anxious and quickly seek proximity.
10 Strategies to Help Coax Your Client in Denial Back to Reality
What can attorneys do to pull clients back to reality who are stymied by denial or loss of significant attachments?
- Be polite. Sometimes it takes folks some time to accept reality. Give the client some time and room to adjust.
- Focus on family. Particularly where children are involved, the client needs to focus on the best interest of those children, and –to the extent possible – on having a solid working relationship with the other parent. Even if the marriage is being dissolved, the participants will often remain connected by their children.
- Ascertain if there are interpersonal connections outside of the immediate family unit who can assist the client. Where can clients feel as though they belong, even as their marital relationship is dissolving?
- Encourage the client to be a proactive optimist. There is a difference between being engaged in the process and taking steps to enhance the chances of success, versus being passive and simply hoping that things will turn out favorably.
- Reframe. Can the litigation be turned into a learning and growing experience?
- Forgive. Typically, the dissolution of a marriage is not about one big thing, but many small things. Can you help the client find room to forgive reprehensible conduct when appropriate?
- Self-care and self-help are essential. The client must take steps to take care of themselves and their children.
- Read. Knowledge is power. Have a reading list handy to assist the client to engage in self-help.
- Refer. Some cases warrant referring the client to a mental health professional so that the client can work through issues, including depression, substance abuse, or other issues. Have a network in your community to facilitate such referrals.
- Coach. Each person needs to find the inner strength to self-motivate, even in difficult circumstances, such as protracted litigation.
What can the parties agree on? What can motivate them to settle their differences? Each case presents new challenges. As Jim Butcher wrote in Turn Coat (Roc, 2009): “The human mind isn’t a terribly logical or consistent place. Most people, given the choice to face a hideous or terrifying truth or to conveniently avoid it, choose the convenience and peace of normality. That doesn’t make them strong or weak people, or good or bad people. It just makes them people.”
Keeping Your Client on Track
Attorneys, mental health professionals, mediators, and judges should employ sensitivity in their work. Greek orator and statesman Demosthenes said, “Clouds cannot cover secret places, nor denials conceal truth.” Denial is a natural impulse that can shut down litigation, but there are many ways to assure that the process – and the people caught up in the process – stays on track.
Elisa Reiter (JD, BA) is a Senior Attorney at Underwood Perkins, P.C. Board Certified in Family Law and Child Welfare Law by the Texas Board of Legal Specialization, Elisa graduated from SMU School of Law at the age of 22, later returning to teach family law. www.uplawtx.com
Daniel Pollack (MSW, JD) is a Professor at Yeshiva University’s School of Social Work in New York. Professor Pollack has served as an expert witness for lawyers in more than 30 states, and he has also provided litigation support to many attorneys. www.yu.edu/faculty/pages/pollack-daniel
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