My clients always ask me, "Do we need to hire an attorney if we are working with Little Falls Mediation?" Although I am an attorney, my job when working with my clients in mediation is to be neutral at all times -- not to be an advocate for each party. I always advise my clients that it is a good idea for each of them to retain counsel so that they can ask for legal advice throughout the mediation process, as well as have an attorney review the draft Marital Settlement Agreement or Memorandum of Understanding that I have written for them. Karen Keyes is this month's guest blogger. Karen is a friend and colleague and founder of Arlington Collaborative Law. I ask her to speak to the law school class I teach each fall at GMU, Alternative Dispute Resolution, on the topic of collaborative law. I've asked her to be guest blogger this month to explain how she often works as a reviewing attorney after a mediation agreement has been drafted.
As a Family Law Attorney, I am often contacted by a potential client with the request that I review an agreement reached in Mediation. It is important that the client (and the person referring the client) understand what to expect from the Attorney under such circumstances. The parties have come a long way and have done a large chunk of the work to frame an agreement; the Attorneys then can help the clients cross the finish line!
A Mediator following sound protocol would inform the parties at the beginning of their Mediation that the Mediator does not provide legal advice and the parties should each have any agreement reviewed by their individual attorneys prior to signing a settlement. The Mediator should also inform the parties what the Mediator’s drafting policy is. The Mediator cannot provide legal advice or represent either party. The Attorneys, not the Mediator, should be responsible for the final contract. Both parties cannot be represented by the same attorney.
Furthermore, it is sound practice for the Mediator to work with the clients to summarize their financial disclosure to one another (assets, debts and income) so the consulting attorney has access to both parties’ information.
Ideally, the client has met with, and hired the Attorney, to consult with the client throughout the Mediation Process, so that by the time an agreement is reached, there are no surprises to either the client or the Attorney. The clients save funds by working together directly with the Mediator and the Attorney’s fees are lower when the Attorneys are not directly negotiating with each other on behalf of their clients.
The Mediator may prepare a Summary or Memorandum of Understanding reflecting what is agreed to (such document is not intended to be signed by the parties). If a document is signed by the parties, it may be legally binding and very difficult, if not impossible, to change unless the parties both agree.
Once the parties have a verbal agreement on the issues, and a Memorandum from the Mediator, then a determination is made regarding who will draft the settlement contract (which includes the necessary legal language and would be signed by the parties when in final form). Some Mediators will offer to draft the settlement contract; some may not. The client should inquire with the Attorney whether the Attorney has a preference regarding who drafts the contract (Mediator v. Attorney).
In any event, at the very least, each party should consult with a separate Attorney regarding the content of the settlement contract before signing the document. The role of an Attorney advising the client is to obtain the facts for a good intake (including but not limited to the disclosure summary prepared in Mediation), to inform the client regarding the applicable laws on any topic that is relevant and how those laws apply to the facts and the tentative agreement, to discuss whether there is any additional disclosure that should be obtained prior to entering into a signed settlement contract, and to be sure the client understands what is being agreed to and the impact that it could have over time.
The Attorney advises the client whether certain topics should be added to the agreement. Further, the Attorney would need to review any contract, if one has already been prepared, and to advise the client regarding any changes to the content and verbiage.
Sometimes, when a Mediator informs the parties they should each consult with an individual Attorney before signing a settlement contract, the client may not have the full understanding of the role of the Attorney. I have had clients request one hour of my time to do the job. Every case is different. Yet, unless a case is very simple and the assets or debts are minor and there are no child or spousal support issues, it is very difficult to get much accomplished in one hour. It is reasonable to expect that it may take a few hours for the consult, intake and discussion, and then more time to review the Agreement and make suggestions regarding content and verbiage.
Once a settlement contract is finalized and signed, it then becomes a binding legal contract and is likely to be incorporated into a court order (i.e. divorce, custody, support etc.) The reason to consult with an Attorney is (1) so the client understands what is being agreed to; (2) so that the document is solid, will be acceptable to the court, and durable over time; and (3) to avoid any contest over the agreement in the future. The legal consultation is not just a matter of checking in, but to assess the legal work needed that exceeds the responsibility of the Mediator.
A good Attorney who is asked for review should understand the concept of client self-determination and still be able to advise the client and provide any protections that are beyond the scope of work that the Mediator can provide.
If the client brings a signed settlement to the Attorney to use in obtaining a Divorce, the Attorney is then taking action to incorporate a settlement contract that the attorney had no responsibility for prior to its execution. Depending on the content, the Attorney may or may not be willing to do so.
In closing, it is best not to be “penny wise and pound foolish.” Allow time to get legal advice along the way and to have an attorney be involved in the drafting of the settlement contract before signing the document. The settlement contract is more likely to meet the needs of the client and avoid unnecessary costs that could arise later due to lack of clarity, interpretation and/or enforcement at a later date. Once the agreement is complete, the client should be able to have confidence in the document that is signed.
“Note to self: every time you were convinced you couldn’t go on, you did.” -- Unknown
Death, divorce, illness, and unemployment are four big sources of stress in our lives. When I first meet my clients, they don't have to tell me they are going through a really tough time in their lives. I see grief and loss written all over their faces. I often think of Sheryl Sandberg, whose husband Dave died while they were both on vacation in Mexico celebrating a friend's 50th birthday. Sheryl took a nap and Dave went to the hotel gym where he died suddenly after falling off of a treadmill and suffered head trauma and blood loss. An autopsy revealed that he had suffered from coronary artery disease. Sheryl wrote and spoke openly about being "swallowed up in the deep fog of grief".
Many, if not all of my clients, are openly grieving as well. I watched Sheryl's commencement speech at University of California, Berkeley a year after her husband's death -- or as she says, one year and thirteen days after she lost her husband. She said that for many months afterward there was a void and described "an emptiness that fills your heart, your lungs, constricts your ability to think or even to breathe."
Sheryl talks about how she hit the books to try to understand and process grief and resilience. She looked at the data and quotes psychologist Martin Seligman in saying that there are three Ps -- personalization, pervasiveness, and permanence -- that are common emotional reactions to so many things that happen to us and are critical regarding how we all recover from hardship.
• Personalization is the belief that we are at fault. Sheryl says that not taking failures personally allows us to recover — and even to thrive.
• Pervasiveness is the belief that an event will affect all areas of your life. Sheryl says that she realized that other things in her life were not awful. After all, she and her children were healthy and had loving friends and family.
• Permanence is the belief that the sorrow will last forever. Sheryl says that we often project our feelings out indefinitely. Instead, we should accept our feelings and recognize that they will not last forever.
How do we define resilience? Harvard Business Review says that resilience is the ability to recover from setbacks, adapt well to change, and keep going in the face of adversity. (Harvard Business Review, January 5, 2015)
Organizational psychologist Adam Grant says that terrible things will happen and that resilience is crucial; the key is how you recover. “I think about resilience as the speed and strength of your response to adversity. So when you encounter a difficulty, a hardship, a challenge, how quickly and how effectively are you able to marshal strength and either overcome that challenge or persevere in the face of it?” (CNBC, June 7, 2017)
Sheryl said in May of 2017 at a commencement speech at Virginia Tech that we are not born with a certain amount of resilience. Sheryl says that resilience is a muscle, and that means we can build it. "We build resilience into ourselves. We build resilience into the people we love. And we build it together, as a community... It is in our relationships with each other that we find our will to live, our capacity to love, and our ability to bring change into this world."
Sheryl talks about building resilience through shared experiences and narratives, relying on others, acknowledging our friends' challenges, being present for those in need, growing and nurturing hope, lifting each other up, celebrating joy, and cultivating gratitude and appreciation. "Counting your blessings increases them. People who take the time to focus on the things they are grateful for are happier and healthier."
So write down three things that went well today -- instead of three things you did wrong. Call a friend whose mother just died instead of avoiding him because you don't want to bother him. Think about what you appreciate in your life instead of all of the things that are not going well. And reach out to your friends and family to help summon strength instead of isolating yourself.
"If your heart is broken, make art with the pieces." -- Shane Koyczan
Just about every new client asks me this question. Usually, a potential new client will reach out to me by email or by phone call. I set up separate confidential phone calls with the potential client and his or her spouse or partner, since most of my cases are family mediations involving separation and divorce. These phone calls are called intake calls where each party can ask me questions about how the mediation process works and share information with me about the case. After the intake calls, I send each party an intake form to fill out and to send back to me. The intake form provides me with information about each party and also facilitates each party to start thinking about mediation goals and interests. A date is set for a first mediation session. At some point during this intake process, a client will ask me, "So...how should we prepare for our first mediation session?"
Here are my tips for how to best prepare for mediation:
1. Be prepared to be present and to listen. During mediation you will take turns listening and speaking. Bring paper and pen to take notes during mediation when the other person is talking. People often like to talk; it's much harder to listen. Keep in mind that listening does not mean agreeing. Tears and laughter often occur during each session -- bring tissues. Schedule the mediation for a time when you are high energy and well rested, such as mid to late morning.
2. Think about the issues you would like to discuss and prioritize them. One client said to me during intake, "We've never mediated before and we've never gotten divorced before. We don't know what we don't know. Can you help us figure out what issues we need to talk about?" In general, divorcing couples need to think about discussing a parenting plan if they have children that will include resolution of issues such as custody, parenting schedules, holidays, vacations, and child support. If there are no minor children, a mediation may begin with discussion of how to divide assets and liabilities, how to calculate spousal support if applicable, and what to do about real estate, taxes, retirement, insurance and other issues.
3. Gather necessary documents and information. Organize your financial documents and record your monthly expenses. Set up an organizational system if you don't already have one in place so that you have easy access to all of your utility bills, mortgage statements, car loan documents, credit card and bank statements, retirement account information, tax returns, homeowner/car/liability insurance statements, appraisals of valuable items, and all other important financial documents and records. Estimate the net worth that you and your spouse have accrued. Often one spouse was involved in handling the finances in the marriage (paying bills, budgeting, investing) and establishing relationships with the family accountant, attorney, and financial advisor. It's necessary for both spouses to be completely transparent with each other regarding all of these matters.
4. Identify key interests. Work out what interests are important to both of you and then work out a strategy for trying to reach a settlement that addresses these interests. Use Bill Ury's interest-based negotiation strategy: (a) separate the people from the problem, (b) focus on interests not positions, (c) get creative and brainstorm a variety of options where both sides can win before settling on an agreement, and (d) use objective criteria to evaluate options. Interest-based negotiation requires communication, collaboration, cooperation, and compromise; positional negotiation involves holding onto a fixed idea or position and not wavering. In divorce mediation, the core issue when there are minor children is what is in the best interests of the children. For example, a parent may want to spend every day of each school break with his or her children after divorce and realize at the same time that it is in the best interests of the children for both parents to share equal time with the children on vacation days. Some parents choose to split school vacations, some parents alternate vacations, and some families vacation together post-divorce.
5. Reality check your case. Each party should retain an attorney with whom to consult at any point during mediation and who can review the written agreement the mediator will draft after all decisions have been made in mediation. (Although I am an attorney, as your mediator, I must maintain neutrality and cannot also function as the reviewing attorney.) Ask the lawyer how he or she thinks a judge may rule on an issue that may be particularly difficult to settle in mediation, if the case were to go to court. Consider the lawyer's wisdom and advice as negotiations proceed in mediation.
6. Assemble a team of advisers if necessary. A divorcing couple may wish to find a certified divorce financial analyst who will work with both parties as a financial neutral. The parties may also want to jointly consult with an accountant, tax adviser, business valuator if either party owns a business, real estate appraiser, therapist, parenting coordinator if there are children, and a retirement expert if necessary. We may bring one of these consultants into mediation for a short period of time by phone call or in person. Each family is unique and sometimes there is no need for a consultant at all.
Happy 2019! I'm back to teaching Mediation at George Mason University Antonin Scalia Law School for the Spring semester after teaching Alternative Dispute Resolution in the Fall. In class on Wednesday I'll be talking about interest-based negotiation and William Ury, one of the world's leading experts on negotiation and mediation.
Ury is co-founder of the Harvard Program on Negotiation and author, along with Roger Fisher, of Getting to Yes, as well as numerous other publications. Ury talks about how to build a golden bridge in the video clip below.
Ury says that the phrase “golden bridge” comes from a Chinese military strategist Sun Tzu, who twenty-five hundred years ago wrote a book called The Art of War and talked about building your opponent a golden bridge to retreat across. Ury says that "In negotiation I would reframe that positively as a golden bridge for both of you to advance across." In the clip, Ury talks about how Steven Spielberg built a golden bridge during his high school years with a bully who was tormenting him.
Ury says that "you may be tempted to push—to cajole, to insist, and to apply pressure. But pushing may actually make it more difficult for the other side to agree. It underscores the fact that the proposal is your idea, not theirs. It fails to address their unmet interests. It makes it harder for them to go along without appearing to be giving in to your pressure. And it makes the prospect of agreement seem, if anything, more overwhelming."
"Instead of pushing the other side toward an agreement, you need to do the opposite. You need to draw them in the direction you want them to move. Your job is to build a golden bridge across the chasm. You need to reframe a retreat from their position as an advance toward a better solution."
December is a busy month for everyone -- there are so many presents to buy and wrap, holiday parties to host and attend, and deadlines to meet at work before taking off a few days. For me, December of 2018 is also busy because I am meeting with many clients who are trying to get divorced before the end of the year, in part because of the changes in the tax law and in part to make a fresh start for 2019.
I work with successful, smart, talented, hard working, good looking parents who share stories about their children and their families with me. The families with whom I work have chosen to work through issues such as co-parenting and splitting assets and liabilities through mediation rather than litigation. Getting divorced is one of the hardest challenges a family can face, right up there with unemployment, illness, and/or losing a loved one. Many of my clients are struggling right now to just get through the day, so trying to figure out how to get through the holidays this year can be overwhelming to them.
Ingrid Fetell Lee of The Aesthetics of Joy says that "often, when a crisis hits, we are tempted to forgo joy and focus our attention only on dealing with the problem at hand. We rely on grit and tenacity to help us push through the difficulty and get to the other side." She suggests that "we’re usually better off if we allow a little joy into our struggle. Positive emotions play an important role in resilience. They provide relief from stress, allowing our bodies and minds a moment to recover. They also broaden our mindset, breaking us out of gloom-and-doom cycles of rumination and helping us gain new perspective on our problems. Research by psychologist Barbara Fredrickson (among others) suggests that feeling joy during a stressful time actually “undoes” the negative cardiovascular effects of stress on the body, and that people who experience positive emotions amid adversity cope better and are more resilient in the face of future problems."
So here are just 5 tips for trying to stay joyful during tough times:
1. Say thank you and express gratitude. Be grateful for all that you do have and may take for granted -- good health, good friends, good food to eat -- and don't dwell on what you don't have.
2. Find purpose and have passions. Stephanie Sarkis, Ph.D., says in Psychology Today (December 31, 2017) that "the truth is, what gives our lives purpose and meaning changes over time. It particularly changes after a big life event or crisis. Some self-reflection is a good way to start discovering what truly matters to you."
3. Surround yourself with positive people who inspire you. Make meaningful connections. Lean on friends and family.
4. Do something for someone else. Volunteering to help people or animals will give you joy. For example, Temple Rodef Shalom in Falls Church, Virginia has a Mitzvah (Good Deed) Day every Christmas with projects for all ages with the goal of making the holiday brighter for those neighbors in need in the community. This year volunteers will cook and deliver meals to shelters and group homes, help clothe children and families, and help animals in area shelters.
5. Sing and dance. Ingrid Fetell Lee says that "singing and dancing offer powerful ways to shake off stress and feel our way back toward joy. Studies have found that when people sing together, their heart rates, brain waves, and emotional states become synchronized. Similar changes happen when people move in concert. Singing and dancing together can even promote cooperation and generosity, which may be why shared vocalizations and movements are an integral part of religious or spiritual traditions around the world."
Let me know what you do to stay joyful in tough times to add to the list!
Wishing you all a happy, healthy, peaceful, and joyful Christmas and New Year!
Michele and I will be working together to help families who feel that they will benefit from the guidance of a financial neutral during mediation. Below Michele explains the role of a divorce financial analyst:
If you are new to the mediation process, you may be feeling a bit overwhelmed with questions. Many people wonder how can they make ends meet in two homes. How do they know if they can afford to keep the house or buy a new place? How do they decide what to do about the retirement accounts? Sometimes even trying to figure out a budget can be a daunting task. But where does one look for help? You will need someone who specializes in finance to give you some direction.
I am a financial advisor who specializes in the issues surrounding divorce and separation. For many years I have been helping my clients empower themselves to make the most out of their lives and money. I have personally been through a divorce and understand the impact of divorce on your life and your financials. I have a degree in business with a specialization in finance. During my divorce in 2009, I experienced some financial pitfalls of my own. Shortly after, I received specialized divorce financial planning training as a Certified Divorce Financial Analyst (CDFA), Certified Divorce Financial Specialist (now also CDFA), Master Analyst of Financial Forensics (MAFF) and Certified Valuation Analyst (CVA). My divorce led me to start my firm, Divorce Dollars & Sense so that I can assist with the financial portion of those families who are going through the divorce process.
I feel that sometimes solutions are difficult to see when you are close to them. As a financial neutral during the mediation process, I can assist in a number of ways depending on your needs. I feel strongly about trying to remove the emotions from the financial decisions. We can have discussions regarding your individual concerns and how we can best address them. The most common issues I look at are the best way to divide debts, pensions, retirement accounts and child expenses. We also look at making sure there is enough life insurance in place if support is paid out and the value of closely held businesses. As your financial neutral, I can assist in trying to maximize your marital estate and attempt to minimize tax implications. I try and look at creative solutions when possible that fit each individual’s objective for the future. We can look at some current and future projections of what different financial ideas may look like. Many clients feel they have more confidence in making their decisions after they have examined the true short and long term impact of those proposed financial solutions.
As a financial neutral, I am part of your divorce team. I may not need to participate in all mediation sessions and some of my work is behind the scenes working on report preparation and analysis. Even though I am not always present, I am always available to help with any financial question or concern that may arise. I am excited to serve Ellice and her Little Falls Mediation clients where they feel my expertise would be of benefit to them.
I just spent the last week in downtown San Diego talking and learning with other dispute resolution professionals, including lawyers, mediators, financial planners, and marriage and family therapists. The Academy of Professional Family Mediators (APFM) and the Association of Divorce Financial Planners (ADFP) joined together to host the 2018 Catalyst Conference.
For the first 3 days, I barely left the hotel since there were so many seminars and panel discussions from which to choose. It was tough to sit in meeting rooms when the sky was so blue, the sun was shining in a cloudless sky, and the temperature was in the 80s with no humidity! Did I mention that one of the meeting rooms was really really cold inside?
On the first day of the conference, I went to breakfast at 8:00 a.m. and did not return to my hotel room until 8:00 p.m. I was exhausted and exhilarated. After the conference, I took time to take in the beauty of the beaches and hiking trails of La Jolla. I continued to think about and process all of the concepts discussed over the past week and the people with whom I connected and had really great conversations and interactions. I will be planning to incorporate this wisdom, as well as new ideas and methods, into my mediation practice as the practice of mediation continues to evolve in exciting ways!
Here is a recap of some of the wisdom I heard over the last few days:
Perspectives of Experienced Divorce Mediators
Chip Rose: We need to make our clients feel comfortable and safe on macro and micro levels. Do they know what they need to know to make important decisions? In mediation, everything is organically connected. Let’s maintain a level of calmness and safety and talk about one issue at a time. Educate our clients about strategic thinking and settlement maximization.
Amanda Singer: Let’s provide clients with the resources they need. Also: ask them what are their 3 main goals of mediation?
Jim Melamed: Focus on what we can deliver for our clients.
Using the Power of Your Brand to Support Your Clients
Katy Goshtasbi: Our goal is for our clients to have positive client experiences and that we have success and happiness in doing the work that we do. Does our brand sell happiness at some level? What do I want to be known for in 2018?
How Mediators and Financial Professionals Work Together
Susan Miller/Rachel Goldman: A divorcing couple can feel very supported by 2 neutral professionals. It can be more effective to have a financial neutral and a neutral mediator sit down with the couple than for a mediator to send the clients to meet separately with a financial professional. Taking time to build the relationship and trust between the professionals is key. (Interesting sidebar: people who work in the field of conflict resolution are often conflict adverse!)
Chip Rose: Realized that he needed to incorporate financial professional and mental health professionals into his mediation practice.
Stacey Langenbahn: Create your team, prepare your clients to ask questions, sometimes it may be appropriate for clients to see financial professionals outside of mediation – for example, you don’t want to see the financial team zoning out during a mental health discussion during a mediation session
Chip Rose: Use a team model approach where appropriate – or use different portals of entry. Figure out a way for the necessary professionals to work together.
Rachel Goldman: Be flexible depending upon the needs of the clients. (She will mediate remotely via zoom and skype since she lives on the West Coast and her financial neutral lives on the East Coast.) Don’t say to them: that’s not how it works!
An Experienced Mediator’s Favorite Techniques
Jim Melamed: Rapport is essential. Help clients reach greatest possible satisfaction of their interests. Ask clients what they like to do in their free time and speak their language. Meet people where they are. List what both parties agree upon easily. It is hard to overcome the reluctance to engage in unilateral concessions. Ask clients: do either of you have any other ideas that would make this agreement better? If not, it’s as good as it gets!
Mediator Mishaps: Avoid the Nightmares and Sleep Easy
Terri Breer: Ask questions early and often regarding real property, retirement values, surviving spouse issues, QDROs, pensions, tax matters such as capital gains, unpaid taxes, deferred compensation. Understand that certified divorce financial analysts do not give tax advice.
Why Clients Don’t Take Our Advice
Michel Zelnick, CPA, JD, MFT: Ambivalence surrounds change. Here are the 6 stages of change: pre-contemplation, contemplation, determination, action, maintenance, relapse,.
Your Agenda or Mine?
Bill Eddy: With high conflict clients be extra structured. Focus on tasks and not on how they feel. The agenda is up to them. Help them to make lots of small joint decisions. Proposals become building blocks of their agreement. Work on smaller issues first which will build momentum for bigger issues.
Recently I participated in the I Am CEO podcast with Gresham Harkless (thanks Gresham!) I am CEO is a short podcast that features and provides information for CEOs, entrepreneurs, startups, and business owners. Gresham is a Media Consultant for Blue 16 Media and the Blogger-in-Chief for CEO Blog Nation. CEO Blog Nation is a community of blogs for entrepreneurs and business owners.
Gresham asked me why I started Little Falls Mediation (LFM) and asked me to describe what services I provide. He asked what makes LFM unique. He also asked me what one favorite resource or life/business hack has helped me as a CEO. He asked if I have a golden nugget to share with other entrepreneurs and business owners. Last, he asked what being a CEO means to me. Here are some of my responses to his questions:
I started LFM because friends of friends and acquaintances were asking me to help them with their family issues, such as how to go about separating and divorcing, and I was referring them to lawyers and other mediators because I didn't have my own business. I was a lawyer/mediator handling court referred cases in D.C. Courts. At first it didn't occur to me to start my own business. I didn't think of myself as an entrepreneur. After Northern Virginia magazine ran a cover story on divorce that mentioned mediation and praised my work as a mediator from a happy client, I started getting calls from people I didn't know seeking my services. The funny thing is I had no idea that the magazine was publishing a story and that my client was talking to a reporter about mediation until after the issue was on the newsstands.
My unique selling point is rapid response and kindness. It's really important to me to create an atmosphere that is warm and welcoming to clients. When people call me, they are under great stress. Divorce, death, illness, and unemployment are very difficult. So when clients reach out to me, I get back to them right away and I listen attentively to what they have to say. Everyone wants the opportunity to be heard. Mediators are trained to acknowledge emotion but lawyers are not. So if a client is really upset, I don't ignore the emotion.
My favorite resource is Awesome Women Entrepreneurs, formerly known as Arlington Women Entrepreneurs, my networking group headed by Karen Beauregard Bate and Evelyn Powers. We socialize, network, and support one another in members' homes or local businesses. My golden nugget is to mentor others and to find a mentor. Collaboration is key. I love to work with and learn from other lawyers and mediators. I also wish I had taken a personal finance class in college. Finance classes were not offered in law school!
Last, being a CEO to me means I work really hard all the time and I also get to have lots of flexibility, autonomy, creativity, and freedom. Listen here to the podcast:
Guest blogger Lisa Herrick, Ph.D. is a licensed clinical psychologist who offers collaborative divorce coaching. She works as a parenting coordinator for high conflict, divorced parents, and sees both individuals and couples in her psychotherapy practice. She has co-authored two books with Kate Scharff: Navigating Emotional Currents in Collaborative Divorce (American Bar Assoc. Press 2010) and Mastering Crucial Moments in Separation and Divorce (ABA Press, 2016). Lisa has helped several clients of Little Falls Mediation understand that children need both parents; her wisdom and guidance are exceptional.
Most of us remember the story of King Solomon: faced with two mothers, each claiming the same baby to be her own, he says to the mothers that the only compromise is to split the baby in half with his sword. One mother cries out in fear, and tells the other woman to take the baby, in order to protect his life. Solomon names that woman the true mother, as she was willing to give up her son in order to save him.
This story has many other versions going back in history. The Chalk Circle is a play considered a classic in China, written at some point during the Yuan Dynasty during the 14th Century. The verse describes a judgment made by Bao Zheng, an 11th century aide to the Emperor who symbolizes honesty and justice in Chinese culture. The verse describes two women fighting over possession of a baby. They are placed in a chalk circle and told to tug on the child, one holding his feet, and the other his hands with a goal of pulling the child out of the circle and into her own possession. The true mother lets go of the child, weeping, in order to prevent the child from pain and harm. Bao Zheng then gives the child to that woman, knowing that is the mother who cares most for the child.
Wikipedia notes that scholars have tracked down 22 other stories from folklore and literature that focus on the same theme. Humans evidently don’t really change that much over the centuries in terms of their capacity for conflict. In our own society, we have family court judges still forced to make decisions about who gets the baby, so to speak, when parents are battling for custody and time. Clearly, though many families remain together to rear their children, and many others are able to share time and responsibility amicably when the parents split apart, we still have parents who end up in the “chalk circle”, each tugging on one end of their child’s life while the other parent tugs in the opposite direction.
How does the theme of Solomon’s sword, and Solomon’s wisdom play out today?
In custody battles that end up in court, judges often order custody evaluations of the parents and children. They are interested in assessing – among many other factors - parental behaviors that social scientists have named “gate keeping”. If a parent withholds access to a child for vengeful, or selfish reasons, the gate keeping is seen as “restrictive”. If a parent promotes access to a child in order to help their co-parent strengthen his or her relationship with the child, or become more available to the child, that is called “facilitative” gate keeping.
While court decisions are often unpredictable, and sometimes downright dumbfounding, judges theoretically are trying to determine which parent is most likely to support, and help maintain the relationship between the children and both parents. Judges are, in effect, trying to use the Solomon’s sword idea to figure out which parent should have custody, or more custodial time, with the children. This is because research suggests, and the attachment literature indicates, that infants develop attachments to both parents who care for them regularly, and that children tend to thrive in life when they have ongoing relationships with both parents.
Custody disputes can be complicated, though; judges, evaluators, mediators, litigators and Collaborative professionals alike often have great difficulty determining the true reasons a parent might insist on, or wish to, restrict access by their co-parent to the children.
Let’s say one of the two women in the chalk circle had previously been accused of abusing the baby, or of behaving in frightening ways. What would the right decision have been for Bao Zheng? Would letting the child go to the suspected mother be the safest act?
Sometimes, when parents are in conflict, one parent feels he or she is more “fit” than the other, or actually fears that the other parent is dangerous to, or neglectful of, the child. In those cases, when one parent prevents the other parent from access, some professionals see that prevention as “protective gate keeping.” The question for the professionals helping the family becomes whether the protection is warranted, or is actually unnecessary – and ultimately harmful to the child.
The nuances of situations in which parents are in conflict are essential to attend to. Perhaps one parent (let’s call this parent Parent #1) insists that they are supportive of their co-parent’s time with the child – as long as the time is spent in the home where Parent #1 lives, or is spent in small chunks of time (dinner and a movie). In this case, the question we must ask if we are to remain focused on the children’s needs (and “protection of the baby”) is whether that behavior is protective or restrictive. We need to find out whether, in fact, Parent #2 has a history of caring for the child in attentive and careful ways, or has a history of substance abuse or addiction, or has been neglectful or abusive, or has been absent.
A common situation in divorcing families is one in which one parent has been the primary caretaker, while the other has been the primary breadwinner. Sometimes, the breadwinner has had very limited time with the children, in part because of work demands, but perhaps in part because that parent has been very unhappy in the marriage, and unhappy within the stress of the home. A Solomon’s dilemma arises once the parents have separated, and each parent wishes for their own individual time with the kids. Often, the parent who was primary caretaker believes they are the only parent who can adequately care for the children. This is because they have witnessed, in their own history, the disconnection or even apparent disinterest of their co-parent in the day to day lives of the children. However, a confusing reality surfaces when the breadwinner-parent realizes all they have missed out on in terms of parenting, and once they are parenting in their own space they realize they actually want to be connected to their children. They find they want to become the involved parent they have never been.
So which parent should Solomon favor? The parent who has looked after the children’s needs for years? The parent who has been missing, but now, painfully, wants to develop a strong bond with the children? What is best for the children?
When I work with families in mediation or Collaborative, or am meeting with the children directly, I am always trying to listen for the “real story”. While I am not a judge and I don’t provide custody evaluations to the courts, I do work with many parents and many children in families in which there are custody disputes. In order to help parents figure out a way to share the time, and live together somehow within the chalk circle, I strive to learn – along with the family – whether both parents are ready and able to be available, responsible, and caring parents. I work with parents, listening closely, to figure out – and then to help them recognize – whether protective or facilitative gate keeping is most appropriate. My toughest clients are those who are coping within a restrictive gate keeping dynamic – especially when the parent restricting genuinely believes he or she is being protective.
The good news is that most parents are able to recognize, over time, the needs of the children above their own. Sometimes parents who were previously uninvolved need to “walk the walk”, not just “talk the talk”, and slowly build up their connections to their kids, and build co-parenting trust in the historically caretaking parent. Sometimes parents who have historically struggled with substance abuse, or mental illness are able to achieve sobriety, engage in treatment, and evolve into wonderful, able parents who then need significant time with their children. Sometimes a restricting parent needs time to grieve the loss of the marriage before being able to “let go of the baby” for the child’s own protection and become more facilitative.
In the end, I do believe children need both parents. And though I do not own a sword, I do believe that when both parents are fit, the parents who are truly looking out for their children are the parents who are able to share their children despite the pain of having to – sometimes – let go of them.
I asked my friend, poet, and colleague Laura McCarty to guest blog about gratitude this month:
The mediation process, while leaps and bounds more amicable than arbitration or litigation, can still be emotionally-charged. Change can stir up feelings of loss, anguish and grief. Moving away from those feelings sometimes takes more effort than we feel possible. But shifting your attitude is easier than you think. With a daily ritual that can take less than five minutes, your mindset can transition from a place of loss to one of abundance. It’s as easy as saying thank you. Studies have shown that expressing gratitude or being thankful for what we have in our lives can lead to greater happiness and overall better health. The simple act of showing gratitude can become your own source of healing and empower you. So don’t delay. Harness that power and all the abundance within you to make the changes happening in your life work for you.
Here are some tips to getting your gratitude on:
Guest blogger Laura McCarty is pictured in Glacier National Park on the Grinnell Glacier trail. Laura lives, writes and teaches yoga in Arlington, Virginia. She's grateful for her two inspiring daughters, her dog Ginger, her huge circle of friends, and more people, places and things she can list here.
Ellice Halpern, J.D., is a Virginia Supreme Court certified general and family mediator.