Thursday, April 14, 2016

Litigation aftermath: Good sportsmanship

Barack Obama recently said that one of his biggest mistakes as President was not planning adequately for the political aftermath in Libya once the ouster of strongman Gaddafi was accomplished. I think there is a lesson here as well for family law professionals and parents involved in litigation.  

Some liken family law litigation to a military campaign: the lawyers and clients develop their respective strategies, plan tactics to put the strategy into action, gather supporting evidence and witnesses, consider the other party’s strengths and weaknesses, and time their tactical moves carefully in anticipation of battling in the courtroom.  All this planning and activity is based upon one principle premise:  the “enemy” is the other parent, one’s adversary.   In too many instances, however, planning for trial does not include planning for its aftermath—and once the court has ruled and is no longer involved, the landscape is usually quite different.  

During the period leading up to trial, parents are subject to outside constraints. The court makes preliminary rulings defining what parents can and cannot do and court officers, such as evaluators and lawyers, are always looking over parents’ shoulders, judging their behavior.  As one father remarked: “We’ve outsourced leadership of our family to others.”  In this context, parents are well-advised to do right.  They may not want to do right, they may want desperately to act upon their baser instincts – but it is not in their interest to do so; there is too much to lose.

But after making its ruling, the court closes the case and the legal and mental health professionals step out.  As a consequence, the external constraints, for the most part, are removed.  Although most parents feel relieved that they no longer have outsiders looking over their shoulders, they may be taken aback by the realization that the other parent is also relieved of these constraints.  And once the professionals are no longer involved, both lose ready access to good counsel and guidance.  Parents then worry: “What now will constrain bad behavior?”

In the aftermath, whether they’ve “won” or “lost,” I find that the main focus of these parents often shifts from litigating their interests to trying to manage the attitudes of the other parent: “They only did the right thing before because the court forced them to.   I can’t trust that, they need an attitude adjustment.”   In the absence of external constraints, each becomes over-invested in transforming the other’s mindset to what they view as appropriate and acceptable. 

These efforts, I’ve observed, have something in common:  In almost all instances, they failed. 

Why?  Well, the “winners” in litigation often feel vindicated: “The court said I was right—so why should I do anything different?”  And the “losers?”  For reasons of saving face or not thinking they have anything more to lose or simply because they still feel correct in their beliefs, they feel little incentive to alter their mindset. Indeed, many feel even more entrenched in a position of being victimized, first by their ex, now by the legal system.  It is difficult for these parents to accept that the transformations that they want to see in one another are not under their respective control.  Those changes have to come from within, not from without.

So how will these parents maintain some semblance of normalcy and order for themselves and the children in the aftermath?   The best solution is a cooperative working-relationship between equal parents.  But that gets us back to the problems solved and then created by litigation – the court settles the disputes in question but oftentimes the winner walks away with relatively more power (real or perceived), the loser with less.  It is still possible to have a cooperative working relationship when parental decision-making and parenting-time are not equally distributed, but this is difficult, sometimes impossible, to achieve when feelings are still litigation raw.  Sadly, some parents just aren’t up it – even when time has passed.

The courts and family law practitioners have recognized this problem.  Working with state legislatures, they created roles (e.g., parent facilitators, parent coordinators, decision makers, special masters) for professionals to provide oversight and guidance to families struggling with the litigation aftermath.   The goal of such intervention is modest: Maintain reasonable order and good behavior rather than transformation of attitudes and mindset.  Evidence exists that such interventions can reduce the frequency of additional litigation (see Henry et al., 2009) but, as expected, do not impact parents’ negative perceptions of their co-parenting relationship (see APA Parenting coordination project, 2010). In other words, judges may be pleased that these families appear less frequently in their court rooms, but the parents are not any more pleased or trusting of one another than before. 

When the court recognizes that one or both parents are likely to engage in further bad behavior, it may also write orders with clear behavioral expectations – and equally clear consequences for failing to comply. These types of orders can be effective, although they require one of the parties to bring transgressions to the court’s attention before the consequences can be applied.

I think it is important to note that these programs are a reaction to a problem, rather than an effort to prevent it at the outset.   I said in the beginning of this post that planning for the aftermath of litigation was often missing during the run up to trial. This is where I perceive that family law practitioners, particularly family lawyers, could be helpful.  By insisting that their clients plan for the aftermath, to consider what would be “good” and “bad” behavior regardless of the outcome, and to develop a picture in their mind’s eye of how they want to act and to be perceived by their children, lawyers can help their clients first picture, then plan, then act accordingly.  We coach children what it means to be a good winner and how not to be a sore loser before their first competition.   And with reminders and practices, such coaching usually works. 

Thursday, March 24, 2016

Don't talk about it; deal with it.

There was a recent article in Scientific American about political leaders in South Florida who are concerned about the challenge of climate change on the economy and living conditions in the Miami area.   Faced with national politicians’ reluctance to address the causes of climate change, they learned to reframe the conversation to one about sea level rise – the effects of which residents can see on a regular basis when high tides flood neighborhood streets. By doing so, they turn the conversation away from debate about the causes of climate change and carbon caps and emission controls towards the undeniable reality of rising sea levels – a challenge everyone agrees must be addressed.   

I was reminded of this article during recent conversations with several parents who allege that their ex-spouses alienated their children.    As you might expect, their efforts to confront their ex’s with their perceived alienating behavior triggered arguments, denials, and additional rejection from the children. One father was doubly frustrated with a mediator who denied that parent alienation existed or that parents would ever deliberately alienate their children from the other parent.   In each instance, the buzz words, parent-child alienation, lead to protracted argument and mutual blaming rather than a thoughtful discussion about how to move forward. Just like arguments about climate change, such confrontations, in fact, tend to entrench parents and professionals in their pre-existing biases.

In the face of such resistance, it might help for parents and divorce professionals concerned that parent-alienation is occurring to follow the example of these south Florida politicians—focus on undeniable realities and mutual interests rather than debate cause and theory.  In other words, change the language to change the problem.


In the instance of the mediator who doubted the validity of parent-child alienation, for example, the rejected parent’s lawyer might focus on the children’s behavior (e.g., they’ve refused parenting time the past three months, their reasons for doing so are flimsy and unreasonable) rather than invoking the parent-child alienation concept. It is particularly important that parents and divorce professionals identify common interests rather than poking blame.  For example, there is substantial research supporting the finding that children are harmed when they lose a relationship to a parent.  Such children are at a higher risk for mood disorders and relationship problems as adults. Most parents can agree that they don’t want to increase the risk of their children growing up to lead unhappy adult lives. 

By presenting undeniable “facts on the ground” and identifying such mutual interests, divorce professionals and parents may be able to shift the conversation from “Who’s to blame?” to “What are we going to do about it?”  


Friday, March 4, 2016

Using a MESO to create a summer parenting-time plan

Divorced parents working to create a summer parenting-time schedule for teens should not confuse a MESO for miso. Miso is a delectableJapanese soup made with dashi and regional ingredients.  A MESO, in contrast, isn’t delectable--but it is an exceptionally effective negotiation tool.

MESO is an acronym for Multiple Equivalent Simultaneous Offers a method used by high level negotiators to break impasses, tease out the other party’s interests, and maintain constructive engagement.  Here’s how it works:

One party presents two or more options of equal value to themselves:  “Here are three different ways we could handle your debt obligations.    I’m okay with any one of the three. Which one do you prefer?”  The other party then has the opportunity to choose which option he or she favors—and to explain why.  Since the party making the offer has already said any one of the choices is acceptable, this may settle the matter—they go forward with the option that the other party favors.  In other instances, the one receiving the offer is not ready to accept the option found most preferable (“well, this one is the best of a bad lot”), but their explanation for why that choice is preferable provides valuable insight about their interests and goals.  This information can be used, in turn, to create additional options.

A variation of the MESO is an effective strategy for divorced parents who want to involve their teens in summer planning but don’t want to over-empower the teens by letting them dictate the family’s schedule and parenting-time.  The process starts with the parents sharing their respective goals and ideas for the summer: vacations, travel, summer camp, athletic practices, band camp.  The teens’ ideas should certainly be part of the conversation (“Julie wants to take driver’s education this summer”), but at this stage the discussion and planning is driven by the parents.  With the information they’ve collected, the parents create two or more summer schedules; the only criteria is that each parent must agree that all of the proposed schedules are acceptable. Typically, each plan emphasizes different interests.  In one case, for example, the parents developed two schedules: one dividing the summer into two equal blocks of time, one with each parent, and the other dividing the summer into short blocks of parenting time, alternating throughout the summer.  In another instance, the parents created one schedule that included overnight camp enrollment and another schedule that allowed family travel. Once the parents have developed several mutually acceptable plans, they present the choices to the teen: “Your mother and I have agreed that we can work with any one of these three schedules, which one would you prefer?”   The teen then has the chance to indicate which plan is preferable. The parents can move forward with the teen’s preference or use it as the basis for further discussion.   

In families with more than one teenager, parents can either present a different set of options to each teen (tailored individually) or present one set of options and ask them to decide amongst themselves which one they prefer. 

This approach has several advantages. It reassures the teen that his or her parents can work together and use reasonable compromises to account for everyone’s concerns.  Although the teen weighs in with a final choice, decision-making authority remains with the parents – the teen is choosing amongst options created by the parents, not ones of their own making.  Furthermore, the process teaches the teens the necessity of making compromises and tradeoffs amongst everyone’s preferences to reach agreements:  “You can’t always get what you want.”  But by having a decisive say in what is finally chosen, he or she has real involvement in the decision.    

Tuesday, February 16, 2016


When children align with one parent and unreasonably reject the other, observers often assume that the favored parent is badmouthing—saying negative things about the rejected parent to the children. When asked, however, favored parents often protest that they don’t speak critically of the other parent, that the assumption they are badmouthing is flat out wrong.  In many instances the children confirm that the favored parent is not badmouthing – and assert that they have reached their negative conclusions about the rejected parent on their own.   So what’s going on here?   The children’s negative attitudes typically mirror the favored parent’s – but there is no evidence that the favored parent is conveying such directly.

Recent speeches and debate statements by presidential candidates may offer an insight.  With a few exceptions, the current candidates frequently make remarks that include half-finished sentences, vague words instead of precise ones, and pregnant pauses.  This speech style is not evidence of fuzzy thinking. Rather, the candidates are using a powerful rhetorical device known as an enthymemes

One candidate speaking about immigration, for example, said “we have to have a temporary something, because there’s something going on that’s not good.”  Huh? 

The listener is left to interpret what the candidate meant by this statement.  And in practice, listeners are likely to interpret the candidate’s “something” as consistent with their own beliefs.  Furthermore, the vagueness deflects criticism – the candidate didn’t express any real position here.  Is the candidate saying too many immigrants are arriving?  Or too few?   The listener is left to fill in the gap with their own assumptions about the candidate’s position—but the candidate is free to say later on:  “That’s not what I said and that’s not what I meant.”  Who can argue with that?

It’s easy to imagine a favored parent using an enthymeme to similar effect:  “Well, you know how your father is.”   “Something is sure going on with your mother.”  “Maybe something happened to your father [mother] when they were your age.”  Without overtly badmouthing the other parent, such statements leave it to the child to fill in the gap and reach their own conclusions about what that parent means – exactly what the children say they have done when asked about their negative attitudes.    

Enthymemes come in various forms. In addition to the vagueness of “something,” speakers may use half-finished sentences, silence, or dramatic pauses for similar effect.  Consider these responses to a child reporting excitedly about the other parent’s new partner:  “Well, hmm…..”    “Let’s just wait and see if.....”   “I suppose it could be…[sigh]……maybe, a good thing.”

In each instance, the child must fill in the gap as to what the parent meant, the parent can deny badmouthing, and the child can claim the conclusion as their own, since they indeed filled in the gap with their own biases or conclusions. 

The lesson here is simple:  what isn’t said can be just as powerful as what is said.  Evaluators and therapists should listen carefully for and point out such devices when parents use them and parents should be careful about relying upon them as cover for negative attitudes. 

 Because, you know, something bad could happen if we don’t do something about it.  

Wednesday, February 10, 2016

Scheduling tensions

There are many sources of tension when families work with a psychologist to repair damaged parent-child relationships.   One practical matter with clinical implications is scheduling sessions around teens’ school and extracurricular activities.  If the teen lives primarily or exclusively with a favored parent, that parent may assert that the teen’s involvement in extracurricular activities should be inviolable, a way to insure as “normal a life as possible,” even if the damaged relationship remains damaged.   The rejected parent, in contrast, may argue that sessions with the psychologist should take priority, perceiving that repairing a damaged parent-child relationship is more important to their child’s long-term psychological health than attending every practice: “Is it as normal a life as possible for a teen to be estranged from one of their parents?  Is a football practice really more important than a son’s relationship to his mother or father?”  Teens may align with either positon, although in my experience the majority prefers extracurricular participation over attending family sessions with either parent. 

When such scheduling conflicts arise, favored parents and teens may allege that the rejected parents’ request for sessions reflects a selfish, inconsiderate mindset.   Rejected parents, in turn, argue that the resistance to forgoing a practice or social event to accommodate a session is more evidence of the favored parents’ disregard for the rejected parents’ importance in the teen’s life.   Once parents’ views become polarized, compromise gives way to stubbornness and impasse.   
And experienced psychologists know: If he or she is able to schedule a session in a sweet spot that does not interfere with the teen’s varied activities and parents’ work schedules, the teen is now likely to complain about being over-scheduled, not having enough time for themselves, or not having time for their homework.  No good deed, as they say, goes unpunished. Tensions heighten further when family members dramatize the scheduling negotiations with loud scoffing, eye rolls, exasperated protests, and ‘I told you so.’ 

As in many conflicts, there is validity to each family member’s perspective.  Extracurricular activities offer teens from divorced families opportunities for socialization, skill mastery, and distraction from family tensions—all of which help the teen remain disengaged from their parents’ conflicts and to prepare for adulthood.  But it is also true that teens who do not repair a damaged parent-child relationship are at risk for a host of mental health and relationship problems as adults.  The psychologist’s challenge is to help find a win-win from what family members present as lose-lose. 

In the most problematic cases, the worst of the parents’ respective allegations are true. Indeed, some favored parents insist upon the teen’s participation in extracurricular activities to block therapy.  And some rejected parents insist upon sessions no matter how much they interfere with other events out of spite or to show “who’s boss.”  When faced with such assertions by litigants, experienced judges take matters in their own hands, writing orders that state clearly what takes priority and the penalties for not following the guidelines. 

But before letting conflicts rise to the point of having to submit to a court’s direction, parents might ask themselves:

  • ·       Are our children learning to appreciate different perspectives and the power of compromise?  Or are they learning to be stubborn and oppositional?  
  • ·       Are they learning that healthy relationships find ways to meet each person’s needs and interests?  Or are they learning that their individual interests should trump everyone else’s?
  • ·       Are they learning to respect our wishes, as their parents, just as they expect us to respect theirs?  Or are they learning that their parent’s wishes can be ignored? 
  • ·       Are they learning to approach a problem to resolve it?  Or are they learning that avoidance is the preferred way to manage disagreement? 
  • ·       And if the sessions are court ordered: Are our children learning to respect a judge’s authority and the law?  Or are they learning that is okay to defy a judge’s orders?  To break the law?