The second in a series, this article offers a list of useful Values-Based Language phrases illustrating how to alter your language during your initial meeting to create a protected and informed environment for your family law clients where mutually acceptable solutions will flourish.
By Fern Topas Salka, Family Lawyer and Mediator
This article will start to explore the many language and communication tools that can be adapted to the field of family law Consensual Dispute Resolution (CDR) as well as to the elevated settlement of those family law cases still in the traditional adversarial system. It provides a list of useful Values-Based Language (VBL) phrases in italics, but they are not meant to be a script. Rather, they are meant to illustrate the way we can alter our language to reflect the values we seek to promote.
Values-Based Language is derived from a mix of fields besides the law – including psychology, communication, spiritual and mindfulness training, and business management. The words reflect a host of concepts about mediation, as well as the guidance of many wise mediation teachers, hence, the phrases are followed by a brief explanation of the rationale behind the proposed language.
Using Values-Based Language at the Initial Meeting with Your Family Law Clients
Hello. Welcome. I’m glad you came to see me.
The first meeting is awkward and a little tricky. “Nice to meet you” or “happy to meet you” don’t quite work since people are not happy to be there. But you want to acknowledge they are about to do something positive. A friendly manner and saying very little is usually the best course.
Why are you here? Why now?
If you just ask the first question, you may get a simple answer that they have separated and want a divorce. Or they may begin to list the issues with which they are concerned, a discussion which may be premature at this moment. If you add the second question, you may evoke a discussion about why they are divorcing. Some people have a need to explain this and they will let you know that. But you may want to ask this because it may help you to understand the dynamics of their mediation. David Kuroda, the former head of the Los Angeles County Family Law Conciliation Court, and a skilled private practitioner and child custody evaluator believes that lawyers should not be afraid to let the people talk for a while before we try to take control of the conversation. He suggests that we can also ask: Was it a mutual decision? to get an idea of the dynamic that will likely be happening. If you are comfortable with this conversation, you can add Is there anything you would like to say about…? When it seems enough (not more than about ten minutes per person), you may want to shift the conversation by telling them about how you see your job.
My job is to get you to a better yes.
Mediator, teacher, and author Gary J. Friedman says that “every party comes to a dispute resolution context with a ‘Yes’ – their position, that which they feel they need or want or that which is owed to them.” I follow Friedman’s lead and explain that my job is helping them get to a better yes – the one that resolves the conflict while addressing both sides’ primary interests. I point out that the traditional way of settling cases is for a client and the attorney to argue for a specific resolution which is generally his or her best case. The risk involved in losing and the interests of the other spouse is not generally part of the equation. And the downside of this approach is that it frequently results in an immediate closed door when the other side has different ideas. This approach results in what Friedman calls “the conflict trap” wherein each side wants to be understood but not to understand the other. He or she presents the case as an attack. The response is rarely agreement, but a defense or counterattack in a continuing spiral. The end result of this cycle of hostility is:
- that one side gives in, in which case the underlying conflict is unresolved;
- a frustrating, unsatisfying compromise is reached; or
- that there is no agreement and a third party has to make the decision and the underlying conflict is left fundamentally unresolved.
I want to help you avoid The Conflict Trap.
The law is not the Ten Commandments.
What the law provides is one measure of how things could be resolved, one which will dictate what happens if they can’t reach agreement. Thus, I explain that they are “bargaining in the shadow of the law,” a phrase coined by Robert Mnookin (“Bargaining in the Shadow of the Law: The Case of Divorce” Yale Law Journal 88 : 950-77). However, there are other measures and solutions you may prefer. For instance, there are tax issues, practical considerations, financial concerns, personal promises, and even moral obligations. Moreover, the law is not immutable. At times, it may do a 180-degree turnaround (such as when separate property reimbursement had to be memorialized in a note in order to be upheld, and then, on January 1, 1984, it was only waived if there was a note).
It’s up to you. I don’t represent either one of you and I’m not a judge. I don’t impose any specific solution.
I emphasize the fact that they have made a voluntary choice to engage in this process and they retain complete control over the terms and whether to accept them. And there is no deal until they both agree.
Mediation provides an opportunity to move forward without blame, shame, or anger.
Mediation offers a way to take a difficult situation and do no harm by the process itself. It offers an opportunity for a family in crisis to heal and go forward in a healthy manner while resolving their legal status and financial issues related to their divorce or separation.
At the same time, mediation is a brave choice.
Just because they are mediating their divorce does not mean they are not angry, hurt, or disappointed. Nor does it mean they are skilled at conflict resolution. I acknowledge how hard it is to put aside feelings about the past and promise I will work to help them to do this and to develop skills sufficient to reach an agreement.
I want you to feel safe.
I know that people are afraid that they will not have the “protection” of the traditional adversarial system and its traditional practitioners. I explain that I have a long history of working in the traditional system and I believe that families in transition are not only not protected but often harmed by the grinding system itself. I explain that: “in a traditional, typical case, most people never even get to the halls of so-called justice, where the courthouses are filled with overworked, understaffed judges with their own biases and 40 cases each morning. And if the people do get heard during a debilitating battle that is expensive, invasive, and demeaning, they get short-term decisions not long-term solutions to recurring problems. If they settle their cases short of trial, they have wasted enormous time, energy, and money in formal processes that include preparing for a court hearing that never happens, and they usually settle for deals that attorneys like to say are fair because nobody likes them.” I say that “we can do better than that. We can use a new set of skills that will provide actual protection by ending the cycle of blame, shame, and rage which is the detritus of the adversarial system. Instead of the momentary satisfaction of engaging in battle, I offer a structured process that assists both of you to voice your concerns while protecting you from pressure or attack. I provide an informal way to share information to make sure decisions are made with full disclosure. I will recommend expert assistance (consulting attorneys, financial neutrals, appraisers, child development specialists) where necessary to make sure both parties are on an equal playing field of understanding. In such a protected and informed environment, higher quality, mutually acceptable solutions will flourish. The end result is an agreement that is acceptable to both of you and likely to be honored because you two have been partners in the decision-making. That’s what I call protection.
I’m also here for your children.
In most family law separations, be they accomplished through private mediation or in court proceedings, the children are not heard (unless there is an expensive child custody evaluation). I let people know that “I will be asking about the children and trying to make sure their needs and concerns are heard.” I specifically ask “what you have told the children, how are the children doing, and are you (the parents) getting any counseling.”
How you make choices and resolve your divorce matters.
In her book Elegant Choices, Healing Choices (Paulist Press, 1988), author and educator Marsha Sinetar explains how the choices we make can help us become optimally healthy, restore inner peace and happiness, and lead us to our personal goals. Helping our clients to make “elegant” choices – consciously “selecting the good, the helpful, and positive over their opposites” – is why mediation is important. The process itself, at least as much as the deal, affects how children will fare in the future. I always relate my experience running the Adult Children of Divorce Panel, during which adults who were children when their parents divorced explained the impact of the process on their lives. They anecdotally made clear what the research demonstrates about what children of divorce or separation actually need. (See “A Decade of Divorce Mediation Research: Some Questions and Answers” by Joan B. Kelly, in Family and Conciliation Courts Review 34 [July 1996]: 373-385.) They need to know it is not their fault. They need to know they will be taken care of. They need their parents not to be engaged in a war against each other. And they need to be able to love both parents. The rest of the stuff- the exact parenting schedules, for example, were extremely insignificant in predicting how well they would do and how they would feel about the divorce.
What do you hope your children will say in X years that helped them remember their childhood with fondness? What is the story of the divorce you would like your children to have?
According to Dr. Albert Gibbs, Ph.D., an expert in high conflict divorce, every parent has an answer about what would make them proud to hear their children say. Most of their answers involve good parenting, protecting children from distress, and supporting their access to their other parent. Dr. Gibbs advises asking this question because it puts the focus on the children going forward and reminds them that their actions have long-time consequences.
You can do this.
I express my understanding about how hard it is to put aside feelings about the past and emphasize the need to focus on resolving issues in the future. I assure them that things will get better. In that way, I am what is called a “Holder of Hope.” The idea behind that role was articulated by Dr. Jerome Frank (M.D., Ph.D.) and his daughter, and his daughter Dr. Julia B. Frank (MD), who wrote about “the healing power of expectant faith” in Persuasion and Healing: A Comparative Study of Psychotherapy (Hopkins, 1993). The authors go on to provide many studies where a placebo led to healing because an expert told them it would work for them. In our context, it means that even though the people who come to see us may be unconvinced they can reach an agreement or that life will improve, the fact that I believe it is possible – even probable – is a great motivator and comfort for them. After all, I have a lot of experience with divorce mediation and they usually don’t!
Fern Topas Salka is a Certified Family Law Specialist and Fellow of the American Academy of Matrimonial Lawyers. She is the former Chair of the Family Law Section of the Los Angeles County Bar and has taught and written extensively about mediation and other consensual dispute processes. She has been named SuperLawyer for the past 11 years by Los Angeles Magazine, and is a founding member of the Los Angeles Collaborative Family Law Association, an association formed to advance the practice of collaborative family law. www.fernsalka.com
Values-Based Language for Successful Family Law Mediation and Settlement
This article is the first in a series designed to explore “Values-Based Language”: the many language and communication tools that can be used by mediators, collaborative practitioners, and family law attorneys in more traditional practices seeking to make their settlement skills more family-appropriate.
The Mediation Movement in Family Law
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