Tuesday, October 21, 2014

Moral outrage: Seeking payback

Legal and mental health professionals have long identified high conflict divorces as the most problematic and difficult of cases. Such cases absorb an outsize proportion of time and resources and present the greatest risk factor for mental health problems in the children as well as the divorcing couple.  Their dramas play out in family courts throughout the states on a daily basis.

Why does this keep happening?   After all, the personal damage and financial cost of heightened divorce conflict is well known and many alternate dispute resolution methodologies, educational programs, and therapeutic strategies have been proposed and implemented, specifically to address the needs of these families.

The immediate causes lie in strategic mistakes: positional bargaining when the couple needs interest-based negotiation, preoccupation with minimizing tangible loss when the real risk is exacerbating emotional damage, regarding a concession as a sign of weakness when compromise is, in fact, a time honored way to reach agreements, pursuing revenge as the end goal when what is needed are legally sound, fair resolutions. So why do divorcing couples and their professional teams keep making these mistakes?     

I think one answer is an overabundance of righteousness: “It’s the principle of the thing: I’m right and you’re wrong and you should pay for your mistakes.”

 A simplified picture of the problem goes something like this:  One or both spouses feels betrayed, taken advantage of, mistreated, or terribly misunderstood. In many instances, they have been—although they often overlook or minimize the fact that their spouse feels similarly for equally good reason.  Once working out the difficulties is set aside in favor of divorce, the spouses’ respective interest in the outcome turns from “repairing and protecting us” to “repairing and protecting me.”  This makes sense, each spouse is planning to go a separate direction. But as we try to negotiate an agreement, my concessions are your gain and your concessions are my gain, so when both of us act to maximize our gains and minimize our concessions at the same time, we have a problem. Indeed, when one or both feel that their concessions have been one-sided, a condition I refer to as “concession debt,” it can be exceptionally difficult to break an impasse.

In theory, such an impasse can be solved by agreeing to wipe the slate clean and start anew – seeking fair tradeoffs going forward rather than righting past imbalances. Banks and credit card companies understand this concept, called debt relief, accepting pennies on the dollar to clear credit card debt, refinancing home owners in arrears with less expensive mortgages, and offering no interest grace periods to repay past due debts. Even the Internal Revenue Service will negotiate past due taxes, writing off what cannot be realistically recovered. 

What’s notable about high conflict couples, however, is how little relief they offer to one another.  And their situation is aggravated by the high cost, financially and emotionally, of litigating the conflict—a further source of resented indebtedness.

Why are these couples so resistant to providing each other relief? Couples tell me it is about righteousness—that to “forgive and forget” would be to tolerate, even reward bad behavior, and perhaps set a precedent for such behavior to continue.  I often find that third parties drive these  attitudes, such as extended family members, friends, sometimes legal professionals – who impose their values, and moral outrage, on a vulnerable spouse: “They should pay the full consequence for their actions, after what they’ve done to you, it’s just not forgivable.”  But such reactions overlook what a sober analysis might reveal: pursuing payback for perceived past injustices is likely to cost more than what can be reasonably gained. 

I find it hard to persuade divorcing spouses driven by the righteousness of their positions that sometimes “letting it go” is in every family member’s interest. Instead, they feel impelled to hold the other accountable, achieve payback, and “fight the good fight.”   

Unfortunately, such crusades can leave everyone a casualty.