When Divorce Negotiations are Possible . . . or Not . . .


“Churchill said that you cannot negotiate with your head in the mouth of a tiger.” This is true – Even for those of us committed to Peaceful Resolutions and diplomacy.

When your head is in the mouth of a tiger, trying to “negotiate” is absurd. When Churchill made this statement, WWII was lost. There was no option but for England to fight to the death, despite terrible odds, or be conquered.

This is the nature of litigated divorce. You are not fighting for the sovereignty of a nation. Instead, the war will be fought on a battlefield where your children roam, and your life savings and work are strewn about. Professionals claiming to be “collaborative” in spirit, must be trained in specific collaborative protocols, and be experienced in the same if they are to actually conduct a legal collaborative process that is not litigation.

Consider that for Consensual Dispute Resolution (Collaborative Divorce or various Mediation protocols) to be effective for divorce, you and your partner must be willing to both:
a) Take your head out of your Partner’s mouth, and
b) Notice and take your partner’s head out of YOUR mouth.

Collaborative Divorce Professionals are specifically trained to help you do this, i.e. to put your guns down. Otherwise, fear and the grasping for power, when partners feel helpless, scared and lacking in trust, will drive the divorce process towards litigation.

You can only manage this head-out-of-mouth removal if you are willing to fully know and acknowledge how it is that you may have your partner’s head in your mouth, as well as how your head may be in your partner’s mouth.

In other words, your hope for an honorable and effective resolution depends on your respective abilities to recognize power imbalances that you each hold in place, and how these undermine trust and sabotage peaceful resolutions.

Your head may be “in the Tiger’s mouth,” and power imbalances risk undermining peaceful resolutions, to the extent, for example, that:
•    You don’t have/allow full access to financial documents;
•    You or your spouse took the other’s name off a deed or policy without that person’s knowledge, or never put it on as promised;
•    You or your spouse lack financial understanding of the documents you have and you’re unwilling to learn from a neutral third party;
•    You or your spouse hired a litigating attorney not trained in collaborative while saying you want a collaborative divorce,
•    You are falsely accused or you falsely accuse your partner of child abuse;
•    You pressure your partner, or are pressured into feeling guilty about not trusting a partner when there is a clear history of being untrustworthy in specific arenas;
•    You or your partner claim to want what’s best for your children but obstruct your co-parent’s access to the kids;
•    You or your partner accuse your co-parent of not caring about your child, while refusing to facilitate easy transitions between your co-parent and your child;
•    You force your co-parent to choose between your child’s being upset and your child’s having his/her other parent;
•    You or your partner act unilaterally without consulting each other or the professional team in ways that push, coerce and undermine the trust needed for respectful resolutions;
•    You or your spouse slander the character of the other to the kids, etc.

Similar maneuvers by either partner escalate distrust and push a couple towards litigation even when peaceful options are viable.

Facilitating acknowledgement of how you and your partner may be holding power imbalances in place is part of the multiple layers of work performed by a Collaborative Divorce Team, and especially by the Divorce Coaches (licensed mental health professionals specifically trained in mediation and collaborative divorce). This acknowledgement, in one form or another, is what makes honorable, divorce dispute-resolutions possible.

Recently, an addict parent relapsed and was finally in recovery for the first time.  At that point there still may have been hope for the couple. Their dynamic was destructive but neither wanted a divorce. Then, while in sober living, unilaterally and without discussion, Wife filed a petition with the court barring Husband from taking their 2-year old to another state, where the husband’s work was located. Husband commuted out of state for work and now could not work and responsibly leave their child with Wife, given her relapse.

Understandably, Wife feared Husband might limit her access to their child, due to her relapse. At the same time, she remained unable to understand how her legal action forced her husband to choose between their livelihood and their son. She persisted in wanting him to participate in couples therapy, and/or move towards Collaborative Divorce, without grasping that having a gun to her husband’s head made both working on the relationship and balanced negotiations impossible. She was too scared to withdraw the court petition, and put down the gun, so the couple was forced to litigate.

If one partner actively refuses to understand and let go of the excessive power that is creating a power imbalance, you may have no choice but to litigate. And this will force both of you to carry the relentless emotional and financial burdens of litigation, for yourselves, your children, and perhaps for your whole extended family and community. Litigation doesn’t tend to end until one of you either: runs out of resources, wakes up to the heavy cost of what you’re doing, cares enough about the cost to your children to stop, and/or realizes there is no  “winning” in divorce. Then, and usually only after outrageous expense, people tend to come to their senses and 95% of cases “settle,” meaning the attorneys negotiate the end result, not you and your partner.

In a Collaborative Divorce a professional team identifies and aligns with your higher values and empowers you to sit down and negotiate a plan that considers the well-being of all family members, usually for a fraction of the financial and emotional cost of a litigated divorce. Mediating attorneys may also provide very similar results to those of a Collaborative Divorce, when working in tandem with mediation-friendly, consulting attorneys, neutral, co-mediating Divorce Coaches or CPAs.

 

 

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