Wednesday, March 25, 2015

Alternatives to family court litigation

Legislators in Minnesota recently introduced a “cooperative private divorce” bill that creates an online path to divorce that skips the court system entirely.  Couples would file an “Intent to Divorce” form, consult with advisors (legal, financial, mental health) of their choice during a 90 day waiting period, and then file a “Declaration of Divorce” containing their agreements.  That’s it. No court, no judicial oversight.  And should either spouse feel dissatisfied or bullied, they could leave the private path and start traditional legal proceedings at any time.

The primary objection to this approach is that without judicial oversight couples will reach bad agreements.  But how do we know that?   Has that notion ever been tested? (Answer: No). We don’t require judicial approval of wills, real estate transactions, parenting practices or medical decisions. Why do divorcing couples need a legal system to sign off on what the couple deems to be fair?  And if a couple really wants to reach a complex agreement that takes into account all the nuances of family law, it can hire lawyers to do the work.

No state provides couples a cooperative pathway to divorce as envisioned by these creative Minnesota legislators – yet – but more and more  divorce professionals and online sites offer supportive services for couples who want to avoid litigation and the associated expense, recognizing a growing market of divorcing couples who want to seek fair, informed agreements by cooperating rather than competing.  
But couples who are considering completing an uncontested divorce on their own should beware; the most   important word  in the prior sentence is informed.   A slap dash divorce agreement reached hastily “just to have it over-with” can cause unanticipated problems and cost hefty legal fees to correct.   Getting counsel from trusted advisors – who are often far less expensive when litigation is not involved—is usually a step worth taking. Financial professionals can help couples understand the tax consequences of divorce, how to divide a retirement plan, what’s the best way to handle the family home. Mental health professionals can help parents understand the needs of their children and craft sensitive parenting plans.  Mediators can help couples brainstorm and evaluate different options.  And select online services, such as NegotiatedDivorce.com for couples in Texas, offer extensive educational material about the financial, parent-child, and legal aspects of divorce as well as instruction about how to negotiate efficiently and fairly – at a significantly reduced cost compared to professional fees.

The United States has gone through many social evolutions, including emancipation, suffrage, civil rights, women’s rights, and LGBT rights.  The prevailing trend in our country is toward personal empowerment and respect for the individual.  Similarly, the divorce system, with innovations such as mediation and collaborative law, can be expected to gradually give up its paternalistic mindset (“we know what is best for you and your family”) and institute changes that let couples decide for themselves: “What is best for our family.”  With the right help, many couples can take that step now.

Monday, March 9, 2015

Blame: It's contagious

When divorcing parents testify about how their conflicts have damaged their children, they often try to outdo one another in their attempts to shift blame rather than accept responsibility.  Judges and professional observers are rarely impressed.

Blaming others rather than accepting responsibility for our own mistakes doesn’t work.  Studies find that people who blame others learn less from experience, lose credibility, and perform less well than those who take responsibility for their mistakes.  The same applies to organizations and families. Groups characterized by a culture of blame are less creative, less focused on learning, and less productive.

As research has shown, however, changing a culture of blame isn’t easy: blaming is like a virus, it is highly contagious.  Findings published in the Journal of Experimental Social Psychologyby psychologists Nathanael Fast and Larissa Tiedens, demonstrated that simply being exposed to someone blaming others for a mistake was enough to trigger people to turn around and blame others for entirely unrelated failures.

The subjects in their experiments read about a special election in California in 2005 to fund several initiatives proposed by then governor, Arnold Schwarzenegger.  None of the initiatives passed. Some subjects read a version in which the governor blamed special interests for the defeat; others read a version in which the governor took responsibility for the defeat.

Subsequently, the subjects were asked to write a short essay about a personal failure.  Subjects who had read the version in which the governor blamed special interests were twice as likely to blame others for their personal failure compared to the group who read the version in which the governor accepted responsibility for the election defeat.  The researchers found the same pattern when they varied the stories the subjects read, such as who was to blame for someone not finding a job or an organization’s poor money management.

What drives the contagion of blame?  The felt need to protect one’s self-image.  When we observe others defend their egos, we reflexively defend our own.  Dr. Fast  speculates that the blame virus spreads like a chain reaction:  a father observes a Republican blame a Democrat for a failed legislative initiative; the father then turns around and blames his wife for the dog’s mess on the carpet.  Their son, having witnessed this interaction, subsequently blames his poor math grade on an incompetent teacher.   Interestingly, Fast and Tiedens found that they could inoculate subjects from being infected by another’s blame attributions when they directed the subjects to affirm their self-worth (by writing a paragraph about one of their important core values) before describing an experience of personal failure.

These findings provide clues about the practical steps you can take to interrupt the spread of blame:

·         Complain, don’t blame.  If someone else’s mistakes must be addressed, do so constructively, with an emphasis upon what can be learned, rather than who is at fault: “I’m not interested in listening to your threats.  Please find a different approach.” 

·         Take responsibility. Resist the temptation to blame others when you make a mistake.  This is particularly important if you are in a position of authority or have a great deal of influence within the family. By taking responsibility, you make it safe for others to take responsibility: “I got off on the wrong foot, I’d like to start again.” 

·         Maintain a focus on learning.  Foster a culture in which mistakes are seen as opportunities to learn, not opportunities to be humiliated.  One way to do so is to reward others for demonstrating what they’ve learned from a mistake: “I can see a real change in how you’re approaching this problem, I appreciate that.”