Taming the Provocateur

In every conflict, we are all listening to voices in our head. No, I am not suggesting we are all crazy, only that our inner dialogue can determine the outcome in every matter. How can you and I be sure of this? Well, this is as sure as putting a person on the moon. This effort takes vision and action.  This inner conversation determines whether the disputing parties, spouses, family members, are able to maintain a workable and constructive dialogue that leads to a settlement.  The inner conversation also determines how you move through the post-dispute.  If you are bitter and angry throughout the dispute, you are likely to be afterwards. Now is the opportunity for the change, not necessarily easy, but one that is in essence inevitable if you are reading this blog.

What is the self-talk needed to guide us through a conflict? A skilled mediator and attorney ought to be steeped in this area of practice, though all too often, people in conflict adopt an adversarial or combative posture. Unfortunately, when we confront conflict with more conflict/confrontation, we exacerbate the original trauma that might have been the source of the problem. There is a choice we have at the outset: do we seek understanding, or do we seek confrontation?

Self-talk starts with a vision for your success in the negotiation. When you can see the conflict as a catalyst for positive change in your life, the context of the dispute takes on a whole new shape. When you examine what you need to be happy right now, understanding that no one or no external force is going to make you happy, then you begin to develop a sense of personal responsibility for where you are in your life. Examples of this is when one spouse who was not as involved in the family finances, realizes that it is time to learn the math, learn the budget, and learn what income is needed to make my life operate, there is personal growth; or when one spouse who may have been working too many hours not spending time at home with their children, there is an opportunity for personal growth.

The next step involves building a bridge designed for this particular conflict between you and the individual(s) you are in conflict with. This bridge is built over a conflict that might be so severe or traumatic that you cannot imagine why you would even consider building such a bridge. The pillars for this bridge are that your life got intertwined with this other entity for a reason. You may not like it, but what if this conflict might be the treatment you were looking for in your life? The bridge that you are building is an effort at understanding the other’s interests and concerns surrounding the conflict. It is also essential for your children and family as you model resilience and wisdom as you move through this difficult period!

Sometimes a skilled mediator who has dedicated their career to sharpening/fine-tuning their listening skills can assist in this endeavor. But unless you are pointed towards the bridge and enter into a conversation about understanding the other’s interests, it will be challenging to collaboratively resolve this conflict.

Okay, you hear all this but do not see how you can consider crossing this metaphoric bridge. Remember, it is okay to keep working on yourself and figuring out what your true interests are so you can work through this episode in your life. I encourage you to find an earlier and related trauma that might inform you about why you are holding this conflict the way you are. There may be nothing wrong here, but if a series of past traumas are keeping you stuck, then finding a way to be with the trauma(s), identify it, hold it, feel it in your body, and just let it be might free you up to gain an aware state of presence and wisdom. Generally, when we are holding onto prior trauma, we are blaming the other about what might have caused the trauma. When we can let that earlier situation just be, without attributing any of your pain to the other, you can own it more for yourself and resolve the internal conflict. When the internal conflict is resolved, you suddenly have more space to move onto the bridge, begin really listening to the other’s interests and work towards resolution.

What is a Mindful Divorce?

What is mindfulness?
Merriam-Webster defines: “[Mindfulness is] the practice of maintaining a nonjudgmental state of heightened or complete awareness of one’s thoughts, emotions, or experiences on a moment-to-moment basis.
Jon Kabat-Zinn defines: “Mindfulness [as] paying attention in a particular way: on purpose, in the present moment, and non-judgmentally.” Thich Nhat Hanh defines: “Mindfulness [as] what is happening in our bodies, our emotions, our minds, and in the world. Through mindfulness, we avoid harming ourselves and others.” This paper discusses how mindfulness can be used to assist parties separating and divorcing in ways that show a degree of care and concern for the other, that are otherwise values not usually experienced through traditional divorce.

What does a mindful divorce look like?
As professionals who interact with people during difficult periods in their lives, we are often looking for new approaches that will resolve difficult legal issues while minimizing emotional impact on those involved.

Over the course of my 35 years of legal practice, I have developed a methodology that can reliably bring positive results in emotionally challenging situations. I call this “mindful law.” Here’s how it applies in case of a couple facing divorce.

A mindful divorce establishes a framework for communication and listening. It provides an opportunity for mutual understanding by focusing on each person’s concerns and interests. Mindful divorces resolve conflicts that are in the way of settlement in ways that respect each spouses’ right to self-determination. Mindful divorce addresses the following questions:

Can your clients work out a kitchen-table agreement?
If the clients have a modicum of civility and resourcefulness, they can work out some of the essential agreements on their own. This should be encouraged; it demonstrates self determination and a capacity to work through conflict on their own. Kitchen table negotiations become a mindful process when the parties can apply key listening skills that help transcend
disagreements. However, at this stage of mediation, a legal/conflict divorce coach is often still required to support and finalize technical aspects of an agreement.

What is a mindful mediation?
In a mindful mediation a third-party neutral carefully sets up a structure of communication that encourages the spouses to learn basic listening skill sets and to pay attention to the charges they are experiencing in the moment. A mindful mediation stops the action as appropriate to
inquire into the source of the charge and reflect in a quiet way on that matter. A mindful mediation encourages each party to reflect back what they understand being stated and provides give and take to further understanding of the other’s interests. This becomes a joint effort where recognition and empowerment of the speaker is honored. A mindful mediator embodies this practice and encourages this behavioral change for life.

A mindful mediation also benefits from the party’s resources within their family and community. This may be direct by working with therapists, financial planners, children’s teachers and coaches, and concerned family members. A mindful conversation for third party support presents a crucial distinction as the spouses can avoid feeling alone or ashamed about
their situation. The professional and communal team is coached to provide this support. The mediator is not the only neutral entity involved in resolving the marital separation because other professionals in the community collectively hold the field for a peaceful and practical

How is a Collaborative Divorce mindful?
The collaborative divorce includes individuals with multiple disciplinary skill sets so the divorcing couple is served by experts such as: legal, parental coaching by a licensed therapist, a child coach by a licensed therapist, a financial planner/analyst and a real estate expert. All professionals are trained in the collaborative law model and as mediators. The participation
collaborative agreement entered into at the start of the process, commits to an out of court settlement meeting the key needs of the divorcing spouses while eliminating many of the usual games that might go on between attorneys, such as protracted discovery and divisive/adversarial tactics.

Parties in the collaborative process are empowered to take responsibility for the settlement. The process goes as slowly or quickly as they need, while clearly understanding key provisions of the agreement. It is mindful because all interests and concerns get addressed – to the spouse’s mutual satisfaction.

Can a negotiated settlement, out of court, be a mindful process?
There are occasions when a spouse is up against a difficult situation, in which case a mindful divorce involves me working closely with one individual who is grounded and clear in wanting to escape this conflict while keeping the family core healthy. If there are no children, then just
wanting to keep him or herself safe and protected becomes a priority. A mindful divorce is key in preserving parenting for the best interests of the children, while having the strategic and tactical skills to negotiate or litigate the best possible outcome for the client.

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As an attorney who has been settling litigated matters for the past 35 years and who has been meditating for 40, I understand the import of being in the balcony, encouraging deep seated listening, and creating a space of respectfulness and dignity. This is not easy work and sometimes it gets messy. A mindfulness approach to divorce provides the client with an
opportunity to reduce the karmic impact of the divorce and move into a field of future cooperation.

I am available and welcoming new cases at this time. If you have any questions or would be interested in having a talk on the above subjects by me and one of my therapist/coaching colleagues, please let me know.

Best Regards,
Steve Shapiro

BIO: Steve Shapiro has an established family law practice and has extensive experience in settling disputes concerning civil litigation, business law, civil rights, employment, contract matters, wills and probate. He also served as a federal mediator for the Department of Justice settling September 11, 2001 claims and settling complex energy related matters. He is a member of both the Maryland and District of Columbia Bars. He has a Bachelors’ Degree in
Organizational Science and received his law degree from Antioch University School of Law in 1983. He served as Chairman of the Maryland State Bar Association’s Dispute Resolution Section and was Chairman of the American Bar Association’s task force on confidentiality in federal dispute resolution. He is on the board of directors for the Conflict Resolution Center for Montgomery County, is a member of the DC Academy of Collaborative Professionals, the Collaborative Dispute Resolution Professionals, and the International Academy of Collaborative Professionals.

American Hero or Mental Incapacity?

This past summer Buzz Aldrin’s children sued him in order to gain guardianship and decision -making authority over their father’s health, safety and welfare.  The children acted and moved for guardianship because of their father’s increased memory loss and confusion.  Mr. Aldrin counter-sued his children seeking to keep his independence.  Litigation had a devastating impact on the family.  The court ordered medical testing, and in the end declared that Mr. Aldrin had all his faculties and powers in place and can act on his behalf.

Do you have to have walked on the moon to have a court declare your independence? Do you need a court involved at all in making decisions that are at the core of a family’s well-being? If a family is in dispute what can they do as an alternative to a litigated solution.  Elder mediators provide families an option.

An elder mediator develops a collaborative approach to resolving the dispute. The mediator following the interests of each family member defines the key concerns and interests expressed by all parties. If the Aldrin family had requested services of an elder mediator, could an independent medical evaluation still have been conducted.

The difficult conversation in this hypothetical is what if the medical evaluation determined that Mr. Aldrin was not fit to manage his estate, business and key decision making?  What if Mr. Aldrin refused to adhere to the recommendations from the evaluation?

In establishing the process, the mediator will develop an agreement outlining the process.  Presuming Mr. Aldrin signed the agreement, was advised by his personal attorney that it was a fair procedure and one that would track to any court procedure, would be less costly, less adversarial and maintain some degree of peace within the family – why not give elder mediation a try in such a circumstance?


Family Foundation Disputes

The head of the family has been diagnosed with early onset dementia. The foundation and trust agreements have a provision that if any one of the principals of the trust is not capable of serving, the remaining principals may vote for removal. When you are removing your mother, father, sibling or a loved one from the foundation’s leadership, you are challenging the very fabric that has held your life in place.  Children often feel guilty, timid, and uncertain if they are making the right decision.  A strong patriarch or matriarch often makes it even more challenging if they are in denial or avoiding the reality of their physical/mental condition.  What are the options when the dynamic has one group faced with the hardest decision of their life, while another do not believe the issue to be ‘that bad’. All family members have the best interests of the foundation at heart and face a most difficult decision.

It is quite understandable that a closely-knit family may not want to include an outside mediator into the fold. It is also understandable that the parties are aware of the consequences of non-action! Is the health, safety, and security of the family threatened by this situation. Is non-action a viable alternative? If the family is divided now, what is going to change after a serious event occurs, or does the event just exacerbate the differences?

A skilled elder mediator is going to begin to build trust and understanding between all the family members.  The mediator will work with the family members to understand why they believe what they do. When the other family members begin to understand and listen with assistance from the mediator the family can begin to work together to meet everyone’s underlying needs.

The classic example in an elder mediation where the parent does not want to stop driving and one child understands how dire it is for their parent to maintain independence in life and another believes that the parent is unfit to be on the road – how does the family resolve this simple but yet perplexing situation?  The mediator will work with the family members to begin exploring options for resolution – maybe have an evaluation by Department of Motor Vehicles performed, or a doctor’s assessment. When the family members agree about approach and the desired outcome, communicating with the elder is going to stand a greater probability of success.

The Importance of asking WHY!

Probably the most important in negotiation.  Yes, a two-year old might cry why do I need to go to bed now, a twelve-year old might ask- why do I need to clean my room and a teenager might ask – why do I need to call you if I am coming home after curfew. All age appropriate retorts in a parenting context.  In a negotiation, the question why is not one of defiance, but of understanding. At the core of a win-win structure, are all parties and participants in the negotiation understanding the core needs and interests of each other.  This does not mean that you necessarily have to agree with what the needs are the other party is stating, but it does take a sign of character, leadership and integrity to be able to listen deeply to the other.  It means that most people when listening in a conflict situation have their ears tuned into their own radio station with the call letters WIFM (What’s in it for me?). But what if we change the call letters to WETA. When there is empathy, trust and attention to what the other is saying, a conducive atmosphere is developed for a sustaining and durable settlement.

The why question is the directional focus for the negotiation.  If a settlement cannot be achieved, go back to the why questions and see what is not being expressed.  Remember in a deep-seated conflict, trauma, disappointment, anger, shame, fear, can be so deep rooted, not many human beings are prone to want to share themselves this roar to the bone.  In When there is empathy, trust and attention (WETA) there is a greater chance for honest and authentic sharing to take place.

The true response to why often produces the tell-tale signs for a settlement structure to come into place.  Participants who understand the value and import of why often leave this type of negotiation feeling better about themselves, the other, and see a brighter future.