Transcript: Mediation and the Good Karma Divorce
Judge Michele Lowrance (Ret.) discusses writing The Good Karma Divorce, leaving the bench for mediation, and why lawyers now have to be skilled at mediation to stay relevant.
My name is Dan Couvrette. I’m the publisher of Family Lawyer Magazine and divorcemag.com and today I have the pleasure of speaking with Michele Lowrance. Michele is a lawyer. She is a former judge. She is now doing mediation and arbitration, and she is an author. She actually has three books that she’s written. The book we’re going to actually focus on today is The Good Karma Divorce – which coincidentally happened to come out in 2011, the same year that Family Lawyer Magazine started. So, it’s a real pleasure to have you here today with me, Michele. Thank you for joining me!
Michele Lowrance: Thank you. It’s always nice to participate in something with you, Dan.
Great. Thank you. In 2011, you wrote the book The Good Karma Divorce as I mentioned. What was your goal in writing the book and can you just share what the central theme of the book was?
The inspiration was at the time that I wrote the book, I was sitting on the judge in family court and had done so for many years and witnessed and thought that I was participating in a process that was eviscerating families, people’s souls, people’s ability to go on with their lives in a productive, healthy, resilient manner and I thought there’s got to be a different way to do this. I didn’t even know about mediation at the time. But I started writing about what my experience was in family court and why I believed people were hurting themselves, sabotaging good sustaining futures for them and the children. That was my motivation for writing a book – thinking there’s got to be a different way.
Right. Of course, you recommended things in the book to make it a different way, didn’t you?
I really did, but more in the global sense where we talked about what it felt like to be betrayed and how anger brought your family and your brain into chaos and a lot of the things that people would experience. People told me over the years, “Oh my goodness, your book saved my life,” and “I wasn’t ready for it.” I was talking about letting go: letting go of the anger and resentment, and how to do that. How the system fosters anger and resentment until eventually, you are the anger, you are the resentment, and to be careful not to become that. That’s what “good karma divorce” meant.
Good karma divorce only meant you will not be the same when your divorce is over. Do you want to have a hand in who you become? Which path do you want to take? So, this was about taking a more elevated path to sustain your soul. That was kind of what it was about.
That sounds like a great thing to be about for sure. This interview is part of our 10th-anniversary issue of Family Lawyer Magazine; we’re looking back at the past 10 years to see what’s transpired and hopefully gotten better – or, in some cases, worse. What do you see in terms of, have we made any progress since you authored that book in the last 10 years? If you want to jump into looking forward, are we going in the right direction based on the current trajectory? What’s your sense?
First, I’ll talk about progress. On many levels, we’ve made extraordinary progress. We have certainly seen the shift from high conflict litigation in court as the sexy model – the things that they wrote movies about, and the things that we heard from our neighbor down the street, whose divorce was a bloodbath – to thinking there had to be a better way. Alternative dispute resolution, whether it’s mediation or collaborative, is now in all the conversations. Even in the really high asset or high conflict cases, the lawyers know that they have to be skilled at mediation to stay relevant. The high asset cases, they don’t want to be in the newspaper. They don’t want to bleed out the fees of extended litigation. There’s been a shift in consciousness. Alternative dispute resolution is always in the discussion now. That’s huge. Another big shift is expectations in shared parenting. 10 years ago, you had this thing called sole custody. They’ve gotten rid of the word “custody” in most places and the expectation is joint parenting whenever possible. When people come to the mediation, or come to court, that’s the new assumption. You can imagine what a big shift that is.
Absolutely, and a good shift obviously.
It’s a good shift because it was that traditionally you’d have the woman doing the cooking, bathing, and bedtime. Now, dads are becoming much more participatory. One, because that’s the new expectation even in some of the grunt work. And in case the marriage doesn’t last, dads want to make sure that they’ve fully participated and their spouse can’t say, “You never did any of this. You wouldn’t know how.” So, this is a big shift in consciousness.
It’s like it’s the water that we’re swimming in now. So, you don’t notice it, but it has changed over the past 10 years. We started Divorce Magazine 25 years ago, so we’ve seen the progression. Based on where we are now what’s the trajectory for the future? Do you think it’s going to continue to improve? And we’re kind of at the tail end, hopefully of COVID. That’s caused an upset in the system I would say. Maybe you can talk about that, but are we on the right trajectory?
The short answer is “yes,” partly because there is alternative dispute resolution. They’ve upgraded some of the training for the judges to understand some of the emotional, psychological, and societal impacts of divorce. I see more high conflict cases coming to mediation, whereas when I wrote The Good Karma Divorce, it was like, “I’m going to be working with people where they’re kind of close and their values are the same and we’ll just have this wonderful experience.” It didn’t turn out that way. Rarely it did during those cases. But mainly, and this is a shift, the high conflict cases were coming into mediation to look for someone to not only manage sewing up and finalizing their case but also to manage the emotions and the accusations of flawed parenting.
In mediation, I always want to talk about family legacy. What are you delivering? What’s the restructured family you’re going to become? I like to think that now we talk about divorce as I like to talk about it as the restructuring of a family and creating the family legacy for children, that the children can be proud of, not diminished because their parents couldn’t figure it out. We’re handing them a very difficult world. The best modeling that parents can do in a divorce situation or a breakup because many people are not married. The best thing they could do is model for them how to negotiate conflict and when your life didn’t go the way you planned it, when things are difficult. One of the things about the 50% divorce rate is that we’re modeling how to handle conflict and disagreement for our children.
What do you think has changed over the last 10 years – like the clients you’re dealing with today in a mediation setting or an arbitration setting? Are they more aligned with it being in an amicable as possible situation or are they fighting tooth and nail as much as they did 10 or 20 years ago?
No, they’re not because of what we understand now. There’s some but what we understand now we didn’t know 20 years ago; we’re just starting to know was the damage to children to be caught in the crossfires.
That not only were the parents infused with the stress hormones from the fight, from a bad adversarial divorce. Their parenting was therefore depleted, but the children were more scared about the world being a safe place because if their home life is not safe, they expand it in concentric circles to the world is not safe. School is not safe. Friends are not safe.
We now have a lot of studies so the parents can say, “We can’t fight in front of the children.” We now know the damage of that. We didn’t know that 20, 30 years ago, we thought. “They’re young, they’re never going to remember.” From four years old, they remember.
This is a new consciousness. Even though people still fight, people still get triggered. We’re all human. There’s still a focus on making sure that the kids are okay and see less of it. There’s an effort being made, a deep effort.
You work with lawyers and have worked with lawyers for years at a variety of stages of their career. So, a younger lawyer – let’s say a 25, 30-year-old lawyer – and a 50-year-old lawyer, a 60 or 70-year-old lawyer, is everybody in sync with the way things are moving? Maybe the younger lawyers, it’s more difficult for them because they’ve got to stand their ground, and maybe the older lawyers have softened a bit and go. “I’ve made my name. I don’t have to prove anything. I can go with a more amicable model. I can be less aggressive.” Do you see that, and can you generalize it better or is that just an individual?
I couldn’t generalize, but I’ll try to answer because you have older lawyers who have their skillset at litigation.
They’re necessary. Regarding the shift towards understanding the other person’s point of view, I had one lawyer say to me, “I don’t want to hear anybody else’s point of view. I want to stay with the way I see it.” I thought “That’s not true, because when you want to have a softer kind of divorce, you want to be able to see others’ points of view. That’s crucial.” So, you have people who don’t have that capacity or don’t want to do it or think their strength is in not doing it.
And you have a lot of lawyers who’ve been around a long time and say, “I’ve got to get on this bandwagon. This is better.”
“It’s more protective of my client and I’m going to learn these skills.” People can change. Then you have the lawyers in mid-career who absolutely think that mediation is part of the toolset.
And the really young lawyers may be afraid to say “yes” because they’re not sure if they’re right. That’s just part of the learning curve.
I think alternative dispute resolution is here to stay without a doubt. I can say that with certainty.
If they don’t go that route, what about going to court these days? Is it better or worse? I mean courts were less and less time, longer delays to get in there, and, particularly with COVID, video. Looking forward, are courts going to be the places for divorce cases in 10, 20, 30 years? What’s your vision for that far out?
Like if I were doing a Sci-Fi?
Yeah, a Sci-Fi movie, I guess – hoping and wishing.
Robots would be conducting the mediation. Anything could happen with artificial intelligence.
And there is a movement towards less communication and texting. I have had 20-year-olds who were getting a divorce. They had a prenup, and the husband was 28. I said, “When you asked her to sign a prenup, how did you do it?” They had the wedding planned and everything. He said, “I texted her.
That’s going to be a switch. It may be less communication or deficient communication skills – making mediation and lawyer communication even more important. Perhaps a mediator who can translate non-spoken emotional problems, anxiety, and emotions might be even more important as we get more robotic.
Right. Clients have become more educated – and that’s good or bad based on who you talk to – I guess through the internet. When they show up to a lawyer’s office, lawyers constantly tell me the client has a lot of misinformation. In some ways, in can make them more difficult, but in other ways, at least they have a sense of the issues, the concerns, and the way things might go. How do you find that in mediation? Do they already know everything before they show up, or are they there to kind of learn their way through the process?
I think it’s great that they can go on Google and find out things. Knowledge is power. What I see is that mediation is an educational experience for them. They come in saying, “My friends have 50/50 parenting time,” and some people will look at what the schedules are for payment of maintenance and child support. I don’t find there’s more sophistication than what the lawyer is going to tell them.
Right. I’m not blowing smoke here, but I know you are a superstar in the field of mediation. It may be because of your personality, because of your interest in really looking at what’s going to benefit clients most, your experience on the bench, all of that together. I’m wondering is do you find that doing the mediation, what percentage is psychologist and percentage is actually mediation bringing together. You get this, you get that, you take care of the children. How much of the process is actually creating that new level of communication that people need so that they can overcome not just the challenge of getting through their divorce but be left with a better chance of being better co-parents if they have children. How much of your time and effort is that do you think?
A lot. For me, I have to try to make sense of the chaos and figure out what is the real dynamic – sort of like Sherlock Holmes, I break the code. What’s really going on here?
You have to be super-duper in tune, as mediators tend to be, to figure it out. I can see that there’s a certain dominance here, and somebody feels victimized, and whatever the thing is that they need to get it done. You’ve got to understand the code, you have to have empathic skills, and you have to know when to strengthen and push a little bit more – which means you have to be able to really read people…
…and read the room. Is there a lawyer who’s coming a little bit unhinged, so do you need to take a pause and work with that dynamic? It’s very Cirque du Soleil. You have all these things going on at one time and whether you’re a psychologist or not, you’ve got to be able to rise up, feel it, and know what to do with it.
Right. This video is going to be watched by family lawyers. How intuitive and Cirque du Soleil able are family lawyers to adapt. This is where we’re going to end this conversation. How able are they to adapt to change and adapt to three new balls that are thrown their way? It could be in terms of the process, in terms of the changing clients, it could be in terms of technology. What are their capabilities from your perspective?
I’m really happy to say it and report this answer sort of.
Not only are they really good – not everybody, but they’re mostly really good. If I say to a lawyer, “This is what I’m seeing.” I find them completely open and interested to figure it out with me.
Have you been paid by lawyers to say this, or this is your actual feeling?
No, no, this is my actual feeling, but…
Because some lawyers may not believe this, you know.
I know, but don’t forget that these are the people who come to mediation.
So, you have a different kind of lawyer to begin with. But even with people who don’t operate like that, I haven’t heard anybody say, “I don’t care. I’m not interested in figuring this out. I don’t care what my client is feeling.” No, I find them very open and interested. Isn’t that great?
So, you must be optimistic about the future for us, then. You see that we are making progress.
I do want to make the point that everybody has escalated anxiety from the pandemic.
So yes, I’m optimistic, but it’s going to be very important for us all to be self-aware – including myself and every lawyer, let alone the clients. Everybody’s anxiety is amped up, and we are not the same as before the pandemic started. We need to watch ourselves and make sure we don’t have a blind spot. Ask a good friend, and they might say, “I think you are a little bit more anxious. I think you are a little faster on the trigger than you usually are.” We need to be self-aware to make sure that doesn’t become the new us.
Right. Michele, anything else you want to say in conclusion on the subject of where we’ve been and where we’re going?
I would say one more thing about where we’re going. Recently, I’ve been doing something called evaluative mediation binding – which means you mediate to try and settle. Where you can’t settle it, the mediator says, “Here’s what I think should happen,” and the clients are bound by that decision. It’s sort of a halfway house in between mediation and court, but it has teeth. It’s been so successful because I get to say, “Here’s what will happen.” And they will usually settle. I mean, because why go to court if that’s what’s going to happen anyway? Why go through the expense?
I think that’s also the future. And more people are getting therapy, and more people are getting their children therapy. The gestalt is really, yes, this is a life trauma. Yes, get help.
That’s part of the new normal.
It sounds like it would be because there’s certainly more emphasis and more openness about therapy and the need for it as a society now. That can only help in a divorce situation – the more of us who embrace therapy, and are not ashamed of it, and promote it. That will help us in the future as well. I want to thank you for your time. It’s always a pleasure, of course, talking with you, and I encourage people who are interested in learning more about Michele to Google “Michele Lowrance “, or to go to her website, www.michelelowrance.com, and you’ll find her books there. You can also go to www.familylawyermagazine.com or www.divorcemag.com and, you’ll find articles that she’s written for us and other interviews that she’s done with us.
Thank you! To everybody, stay well – or as I say, “Stay positive, test negative!”