Earlier this month, CNN aired The Dad Dilemma. Lisa Ling meets up with dads on the losing side of custody battles.
While I believe that the program conveyed some false and misleading information, overall, I believe it was very evenhanded. And, for frame of reference, I would like to mention that I was highly critical of the "documentary" Divorce Corp. and wrote an 11-part series of articles setting forth fifty-eight (58) reasons why I declined a request to endorse the film. That series is based upon an actual email exchange I had with the producer on each and every complaint of mine. And, that doesn't include the first article I wrote on it, which was about the hidden agenda behind the firm, based upon a call I received from the producer in which he tried getting me involved. Thank goodness he wouldn't interview me for the film because I refused to say that which he wanted me to say, and which he had not been able to get any respected family lawyer to say. The title of each of those articles includes the name Divorce Corp. and can be found on my website.
Lisa Ling was very clear that there are two sides to every story. However, that's not really accurate for the reasons stated in the following excerpt from an article by Robert S. Mann titled Chatoyancy & Thixotropic that was published in the November 9, 2018 edition of the Los Angeles Daily Journal:
"The main reason for mediation – to voluntarily enter into a process where a third party pushes the parties to move, to change, to become dynamic and not static or frozen….
One of the most effective ways to create movement is to help the parties understand the simple but important idea that there are ‘two sides of the story.’
The first cousin to the idea that there are two sides to the story is the other reality that in all lawsuits there are, in fact, three stories, not two. The plaintiff has a story to tell. The defendant has a story to tell. Both the plaintiff and defendant feel passionately that their story is the ‘right’ story, supported by a mountain of incontrovertible evidence. They both feel that their story is the only story. But there is a third version of the story. That version is written by the judge, jury or arbitrator. And in a lawsuit, it’s only the third version that counts. The passion and the sincere belief on the part of each side that their story is the ‘right’ story is simply irrelevant. The final story is written by the trier of fact, subject only to a possible edit or change in the ending, written by a court of appeal….
The resolution of disputes in mediation… [occurs] because it’s a better alternative than continuing with an expensive and risky process that leads to an uncertain and unknowable result.”
I've lived the experience to which Mann is referring. I refer to it as the experience of sitting in a courtroom and listening as a judge rewrites the history that you actually lived. That rewritten history becomes the new "factual" history as far as the world is concerned from that point forward.
Along those lines, pay very close attention to the last sentence of the following excerpt because it's something I have long said, which is as follows:
"When judges and juries make factual findings that essentially rewrite history, the legal result cannot be just. I can't being to describe how it feels to listen as a judge shares the fictional story of events and circumstances that never actually occurred and applies the law to those facts. It is an experience you will never forget and it will haunt you until your dying day because only then will you understand why you will never again want to pursue a matter in a court of law. Legal justice is by no means the same as fundamental fairness, and when it isn't even based in reality, it is nothing less than legal injustice."
In any event the following is an excerpt from an article by Myron Moskovitz titled Who is telling the truth that was published in the October 2, 2018 edition of the Los Angeles Daily Journal:
“I’m probably as capable as most people in detecting liars. But that ain’t much, according to recent studies. We’re just not that good at it.
The importance of these studies goes to the heart of our trial system - and our appellate posture of deference to trial court findings....
Some trial judges might respond, ‘These studies might be right about the average person, who serves on a jury no more than once every few years. But I’ve been sitting in my bench for the past 20 years. I’ve learned a thing or two about how to tell when one is lying or mistaken - just by the time of his voice or how he squirms around.’ My response: ‘Prove it, your honor. How can we verify that you were right more often than by chance? And no anecdotes, please. We need stats, not stories.’ One study showed California judges did no better than chance at detecting liars from demeanor. (Same with cops and psychiatrists. Only group to do better than chance were Secret Service agents.)...
‘We defer to the trial court’s determinations on credibility, because the judge and jury saw the witness testify and we didn’t.’”
Do you know what the proper application of the law to the incorrect facts amounts to? Try legal injustice! Again, I’ve been on the receiving end of that - and it’s no fun. Sitting in court and listening as the judge rewrites history - not only for that decision, but for the impact it has on every aspect of your life and people’s perceptions of you. And then, the appellate court won’t change that decision because the trial judge’s factual findings are like gold.
The following is an excerpt from Myron Moskovitz's follow-up article titled Let's play 'Let's Suppose that was published in the October 15, 2018 edition of the Los Angeles Daily Journal:
"My last column described recent studies that seem to upend our common assumption that we can detect false or mistaken testimony by observing a witness' 'demeanor.' These studies show that we can't, and our belief to the contrary can lead juries to verdicts that are just plain wrong.
It's even worse than I described. In fact, our mistaken beliefs - that twitching or looking away shows lying, that confidence in an identification shows that it is accurate, etc. - can and will be manipulated.
* A practiced liar will take care to look you in the eye and not fidget while he is dissembling. 'People who are being deceptive know which behaviors result in judgments of deception - and will try to reduce them.'...
* It's not unknown for a lawyer to counsel a witness who was unsure of her testimony to appear sure of herself when she gets on the stand.
* Likewise, opposing lawyers will also take advantage of these misconceptions - to induce witness behaviors that trigger a juror's disbelief....
A large number of experiments involving thousands of subjects have searched for a human capacity to detect falsehood and errors in witness testimony by observing nonverbal cues. However, 'With remarkable consistency, the experiments have shown that it simply does not exist. To the extent that people can detect lying or erroneous beliefs in another. They do so primarily by paying close attention to the content of what the other says, not by observing facial expression, posture, tone of voice, or other nonverbal behavior....
'While liars do not give off demeanor cues, they do tell stories that are less logical, less consistent and contain fewer details than truth-tellers.'...
If content is the most useful, why defer to the trial court at all? Appellate judges can read the content of a witness' testimony - it's right there in the reporter's transcripts. And if the context of that content is important (it often is), they can get that from the transcripts too.
Indeed, the studies suggest that the appellate judges are more likely than trial judges to get credibility right, because appellate judges won't be distracted by body movements and verbal cues that typically lead people to inaccurate assessments of credibility. 'Strictly with regard to accuracy of credibility judgments, the available evidence indicates that legal procedures could be improved by abandoning live trial testimony in favor of presentation of deposition transcripts. Transcripts are probably superior to live testimony because they eliminate distracting, misleading, and unreliable nonverbal data and enhance the most reliable data, verbal content.'...
The central purpose of our judicial system is to get it right. If verdicts are based on mistaken findings of fact, those verdicts are wrong."
So, here's the thing regarding those who believe that Ling's program provided a lot of false information and those people who are upset with her reporting on the issue - Consider the following excerpt from Regina Pally's book The Reflective Parent:
"We perceive only our brain’s interpretation of what is happening out there. Each person’s view of reality is not the fact or the truth. Each person’s view of reality is a personal perspective created by their brain. Other people create their reality, their own perspective, which feels like the fact or the truth to them."
My perception of the program is that most of the information conveyed is the truth as perceived by those interviewed. And, it's important to understand that we have 50 states in the U.S. It is unfair for us to judge what these fathers are saying, unless we know jurisdiction in which their case was handled, are familiar with the particular judge involved, as well as the content of the particular court file, including all testimony. Judging the information conveyed by the men interviewed based upon an whether or not such things can or do occur in the particular jurisdiction in which you are located is an unfair assessment, unless you happen to be located in their same jurisdiction.
The men interviewed by Ling talked about their feelings and emotions and the program ends with a statement that fathers are learning that it’s okay to experience feelings and emotions stemming from the pain they experience as a result of their involvement in the family law legal system. This is important because a great deal has been said about men being taught to suppress their feelings and emotions in our society and the negative consequences that result.
With regard to that issue, the following is my article titled CoParents: Reasons to Balance Emotion and Logic that was published by coParenter:
"Having been a child of two sets of parents whose divorce was extremely contentious and heavily litigated and after working with families in conflict, I’m fed up with people playing the 'blame game.'
It’s almost always the other person’s fault. If only the other person were 'reasonable.' It’s all very easy when both parties are actually 'willing to cooperate.' Court is the only option if one party can’t 'cooperate' or is 'being a jerk.' These were actual comments to my article titled Why Court Really Should Be A Last Resort.
The Oxford Dictionary defines reasonable as follows: 'Having sound judgement; fair and sensible.' Through technology, we now know which portions of the human brain are activated when people are experiencing emotions of any sort. Neuroscientists have placed a great many people in MRI machines while asking them questions and have observed which part of their brains light up during the decision-making process. What they’ve found is that human beings are ninety-eight percent emotional and two percent rational and that emotions motivate our behavior and impact our attention, learning, memory, regulatory variables, goal priorities and social interactions. Furthermore, the feelings we experience are physical reactions to our emotions.
Meanwhile, our emotions – and therefore the decisions we make – are driven and even determined by our personal biases, beliefs, assumptions, expectations and values, which are formed as a result of our personal backgrounds and life experiences. We all have personal biases, beliefs, assumptions, expectations and values. The question not whether or not such things are impacting our decision-making, but how much our lack of self-awareness is skewing our perception of things and therefore causing us to make poor choices, regardless of our intellect.
Our personal backgrounds have very much to do with our parents and how they raise us. Our life experiences have to do with everything we experience in our lifetime, including people we befriend, schools we attend, courses we take, books we read, our sources of news, etc. Ultimately, our life experiences are strongly associated with our personal choices in terms of what we do, if anything, to try and broaden our worldview. If our parents didn’t teach us to see things from other people’s perspectives, we either need to take it upon ourselves to learn such things or we live in a false reality that our perspective is the only perspective.
Interestingly enough, it’s been found that perceptions regarding morality and fairness are influenced by emotion to a far greater degree than are other decisions.
This is why the importance of emotional intelligence has become such a hot topic of late and explains why people with average IQ but greater emotional intelligence levels have been found to outperform those with higher IQ levels seventy percent of the time.
Emotional intelligence consists of the following four domains and competencies: Self-awareness (emotional self-awareness), Self-management (emotional self-control, adaptability, achievement orientation, and positive outlook), Social-awareness (empathy and organizational awareness), and Relationship-management (influence, coach and mentor, conflict management, teamwork, and inspirational leadership).
The competencies that comprise emotional intelligence are soft-skills, each of which can be learned and improved upon. It is well recognized in psychological circles that the stress of divorce itself is monumental, often reaching nine out of ten magnitude on the Subjective Units of Distress Scale (SUDS). Under such circumstances, people’s IQ performance level has been found to drop by as much as thirty points and not return to its normal level until an average of eighteen months after finalization of the divorce.
At the same time, while emotional intelligence should help people to handle stress better, stress reduces our ability to fully access our emotional intelligence abilities. So, while parents are separating, divorcing or otherwise engaged in a dispute regarding custody of their children, the stress involved reduces their ability to fully access both their IQ and emotional intelligence abilities.
Who then is helping parents in conflict to not let their emotions get the best of them? Their relatives, friends, colleagues, and third parties such as child specialists, therapists, and lawyers who may be supporting their perceptions, even if distorted, and aligning themselves with their positions? Bear in mind the following information set forth in the article titled Emotional Intelligence for Lawyer by Ronda Muir, Esq. that was published by the American Bar Association: 'Emotional intelligence does not correlate with IQ. Just because you’re smart doesn’t mean you’re likely to have a high EI. Some professionals, such as lawyers, exhibit high average IQ scores (in the 115-130 range), while at the same time scoring lower than the general population on EI (85-95).'
The thing about reasonableness is that it’s a matter of perspective. After 25+ years in the field and over 52 years on this Earth, I’ve come to realize that the other party to conflicts and disputes typically thinks the exact same thing – that they are being reasonable and the other party isn’t. The fact that people in conflict aren’t able to reach agreements on their own or communicate well or at all with each other is far from unusual. Of course, from each person’s perspective, they’re being reasonable, while the other is being unreasonable, uncooperative, and is acting like a jerk.
Times in which your ability to fully access both our IQ and emotional intelligence abilities has been reduced is not the time to engage the Greek Choir to align and help you to run with your perspective and position. Rather, that’s when people should consider working with a well-trained and experienced mediator they both trust. Mediators, peacemakers and bridge builders are not needed in times of peace and absence of conflict. Unfortunately, however, people are predictably irrational because of how our brains function.
In their chapter in The Handbook of Dispute Resolution, the winner of the National Institute for Advanced Conflict Resolution’s 2005 Book Award, Frank E. A. Sander and Lukasz Rozdeiczer advise starting off with mediation because it’s a safe, non-binding process for both sides.
The ultimate question is: Are you going to allow your emotions get the best of you?""
Ling acknowledged that she is a child of divorce and agreed with the fathers that "divorce is ugly." Here's the thing - I haven't found that many of those in legal community really listen to now adult children of divorce in order to truly hear and understand their perspective. If they did, I believe that the cases would be handled very differently. And, increasing commentary is coming forth from adult children of divorce and how the adversarial nature of their parents' divorce harmed them. To the extent that family law attorneys don't fully hear and understand the impact of an adversarial divorce on minors, they aren't going to consider such things when it comes to adult children of the marriage.
What Ling said at the beginning of the program was that she believes that many of the fathers interviewed on her program and who hold views similar is the result of "misplaced pain against an entire gender – women." She also said, that "men feel that they are victims of gender bias. Family courts turn fathers into visitors. For divorces to make it to court, it is probably pretty messy. In America, more than 80% of custodial parents are mothers. Part of the problem is that there is no closure related to the pain stemming from the failure of the marriage." And, one father spoke of the collateral damage that occurred as a result his wife's unprocessed emotions stemming from his poor choice to have an affair.
Again, there are 50 states in the U.S. Unless anyone criticizing the information conveyed in this program takes it upon themselves to learn how such cases are handled in each and every one of those various states, it is incredibly unfair to deny these fathers' truths. Among other things, doing such a thing amounts to emotional invalidation.
Here’s what Doug Noll says about emotional invalidation in his book De-Escalate: How to Calm an Agry Person in 90 Seconds or Less:
“Emotional invalidation is the opposite of affect labeling. Instead of acknowledging a [person’s] emotions without criticism or judgment, an adult invalidates and ridicules. Sadly, emotional invalidation is pervasive in our society and culture. The damage it causes is deadly and insidious. In its extreme, it creates violent and dangerous situations.
Emotional invalidation is one of the most lethal forms of emotional abuse.”
In her program, Ling interviewed fathers who learned about their divorce by being served with the petition for divorce. In 2015, I published an article titled Emotional Considerations Regarding Service of Process. I shared that article on a family law listserv. The one response I received was from a law student, who commented as follows:
"Thanks for posting, Mark. This is the type of practical advice more law schools ought be teaching."
Ling's program discussed the use of protection orders as a legal strategy to accomplish a desired result. Ling said the following:
"Nobody argues that proven abusers should be around kids. Protection orders require a lower burden of proof than the beyond a reasonable doubt standard. How can you be guilty until you are proven innocent? A common complaint among divorced dads is that protective orders offer a short-cut for wives to win sole custody and write dads out of the picture."
The following is commentary from a follow-up article to the program by Thom Patterson titled Divorce and child custody: Men cry foul that was published by CNN:
Attorney Randy Kessler
What are protection orders? Are they fair?
If a parent goes into court and accuses the other parent of being a threat for domestic violence, the judge can issue an immediate order of protection, which legally bars the first parent from access to the children.
'The other parent doesn't have to be in court for a judge to issue the order, which sounds a little unfair to the other side. But on balance it's probably a good thing because the orders probably protect more people than they hurt.'
Is there a way to prevent or protect against protection orders?
You could have a witness present during visits with children. Or you could record video of the visit with a smartphone. In many states you can record without the other side knowing. So be aware of local laws.
A judge could use the video to decide if the parent really did pose a threat to his children.
'It's sort of a virtual witness.'"
Just yesterday, the gastroenterologist I've been seeing for my Crohn's Disease every three months for several decades discussed this very issue with me, which he raised. He told me that he has a number of family law attorneys and judges as patients. He told me that the family law attorneys have told him information consistent with that which was conveyed on Ling's program with regard to the inappropriate use of protection orders as a means to an end. He also told me that when he has discussed such things with the judges who are his patients, they have told him that they fear the consequences that could ensue if they erroneously denied a protection order. As a result, they err on the side of caution and tend to grant requests for protection orders. Again, this is consistent with the information set forth on Ling's program.
On November 3, 2018, I attended the Beverly Hills Bar Association Family Law Section's 44th Annual Family Law Symposium. The program was titled Domestic Violence: Delving into the Latest Developments - What Every Family Law Practitioner Needs to Know Today. I was so impressed with that program that I shared the following post on my local family law listserv:
"I wanted to take this opportunity to express my most sincere appreciation and gratitude to the Beverly Hills Bar Association, Jenna C. Spatz and Lauren Youngerman, the Co-Chairs of its Family Law Section, Judge Thomas Trent Lewis, Judge Hank Goldberg (Ret.), Judge Shelley L. Kaufman, Commissioner Doreen B. Boxer, Judge Lawrence P. Riff, Robert A. Roth, Chawn Chapman Holley, and Irene Lee, and to everyone else responsible for the Beverly Hills Bar Association Family Law Section's 44th Annual Family Law Symposium that took place on November 3, 2018. The program was titled Domestic Violence: Delving into the Latest Developments - What Every Family Law Practitioner Needs to Know Today.
All three programs were exceptional. The panelists and those responsible for selecting the panelists and the topics deserve recognition.
I would like to share something I posted on the social media while in attendance:
'I am attending the Beverly Hills Bar Association Family Law Section’s 44th annual Family Law Symposium. The program this year is titled Domestic Violence: Delving into the Latest Developments— What Every Family Law Practitioner Needs to Know Today. The first program is being presented by Judge Thomas Trent Lewis Judge Hank Goldberg (Ret.) and is titled Implications of Litigating and Settling Cases Involving Alleged Domestic Violence. It is an absolutely incredible program and covers non-litigation options because of all of the consequences involved with obtaining Domestic Violence Restraining Orders. They have referenced Harvard Law School’s Program on Negotiation, and mentioned the books Getting To Yes and Getting Past No, while opining that Getting Past No is more applicable to Family Law. I chose to attend this program over the Southern California Mediation Association’s annual conference, which is always wonderful. I’m very pleased with my decision.'
At the very start of their program, Judge Goldberg mentioned that our favorite Family Code Section is 271, which addresses the legal obligation of cooperation and promotion of settlement. Both Judge Goldberg and Judge Trent Lewis made very clear that such obligations apply equally well in situations involving domestic abuse. In fact, they pointed out the importance of carefully considering the risks of Domestic Violence Prevention Act litigation, while also highlighting the issue of safety. The stated 'risks' were about whether or not a requesting party could actually obtain a domestic violence restraining order, but the very severe negative consequences the alleged 'abuser' would suffer as a result of the issuance of such an order. Along those lines, the following excerpt is from their written materials:
'Family law judges clearly understand that people often make mistakes, including serious mistakes. But the family law attorney should keep in mind the universally recognized principle that there is a big difference between a person who makes a mistake and takes responsibility for it, and one who refuses to accept such responsibility. In criminal cases, the Rules of Court specifically recognize early acknowledgement of responsibility as a mitigating factor. (Cal. Rules of Court, rule 4.423(b)(3).) This derives from the commonsense notion that those who acknowledge mistakes are much less likely to repeat them.'
Judge Trent Lewis pointed out that domestic abuse victims are most at-risk when they first meet with an attorney on the issue because this is when they are finally doing something to break the cycle of abuse. And, he pointed out that the legal option may not be the best option.
They advised that we should start by keeping in mind what we are actually trying to accomplish - our end goal, while not losing sight of the big picture.
The second program titled The Trajectory of Domestic Violence Cases and the Potential Effect of the Depublication of Fischer was presented by Judge Shelley L. Kaufman, Commissioner Doreen B. Boxer, and attorney Robert A. Roth, Esq., Appellate Counsel on Fischer, California Appellate Law Group LLP.
Judge Kaufman shared a slide titled 'Strategy & Prepare', which included (1) Weigh and evaluate your options; (2) Know the law; (3) Know your facts; (4) Have exhibits and witnesses ready; and (5) Be efficient. She verbally added 'Be professional' to that list. She made clear that these cases often involve people who have children together and that they are highly emotional cases. Like Judges Goldberg and Trent Lewis, she emphasized the importance of focusing on the big picture. She also mentioned the importance of attorneys knowing the actual facts, not just the information that their highly emotional clients tell them. This was in line with information conveyed elsewhere by Bill Eddy, LCSW, JD, which is as follows:
'Much of today's legal disputes are about what I call Emotional Facts - emotionally-generated false information accepted as true and appearing to require emergency legal action.'
The third and final program was titled Cross Over: The Consequences and Connection Between Criminal Domestic Violence and Family Domestic Violence Proceedings which was presented by Judge Lawrence P. Riff, Shawn Chapman Holley, Esq. Criminal Attorney, Partner, Kinsella Weitzman Iser Kump & Aldisert LLP, and Irene Lee, Esq. Deputy District Attorney.
Their program was described as follows and provided great information and insights we need to consider:
'Family law matters and criminal proceedings can often be intertwined when domestic violence issues are involved. This panel will explore the interplay between family law proceedings involving domestic violence and criminal law domestic violence proceedings. This panel will discuss what family law attorneys should know if there is a parallel criminal proceeding, and the potential impact a criminal matter can have during a dissolution action. The panel will also discuss the crossdisciplinary aspects between family law and criminal law, that all family law attorneys should know.'
Tragically, "what every family law practitioner needs to know" and what every family law practitioner actually knows and/or concerns themselves with are two very different things. If all you have is a hammer, everthing looks like a nail. If you want to work with someone with more tools in their tool box, then I wouldn't recommend working with lawyers who haven't been well-trained in mediation. As both Judge Goldberg and Judge Trent Lewis made very clear at the beginning of that program is that the legal obligation of cooperation and promotion of settlement apply equally well in situations involving domestic abuse. Considering that litigators aren't typically known for such things even in matters not involving domestic abuse, I wouldn't expect them to behave differently when domestic abuse is involved. The beginning impacts the end, as they say.
I could be mistaken, but I believe that Kessler's advice is inconsistent with much of the information conveyed at that program.
One of the pieces of false information conveyed in Ling's program pertained to shared parenting.
In 2015, an article by Linda Nielsen titled Shared Physical Custody: Does It Benefit Most Children? was published in the Journal of the American Academy of Matrimonial Lawyers. That is a must-read article for anyone involved in the field of family law, in my opinion.
Shared parenting is typically defined as meaning that no parent receives less than a 35% timeshare. However, equal parenting advocates use the phrase shared parenting to refer to equal parenting. While shared may be equal, it isn't necessarily equal. The research pertains to shared parenting -- not equal parenting. These advocates misuse the information on shared parenting to advocate for equal parenting, which is more about parental rights than what is in the best interest of children. Bill Eddy and many others have explained why they oppose the use of 50/50 custody as the default. They state that there currently is no default and that establishing a default is harmful. I agree. That being said, the reason for the shared parenting movement is because of judicial bias against fathers in much of this country, from what I understand.
In Thom Patterson's follow-up article published by CNN, he states as follows:
"In America, more than 80% of custodial parents -- the parent that kids live with most -- are mothers. Is it harder for men to get a fair shake in custody cases involving children? Do laws and courts favor women because of a traditional presumption that women are better care-givers for children?
According to laws in most states, they're not supposed to, says family law attorney Randall Kessler, author of 'Divorce: Protect Yourself, Your Kids and Your Future.' 'But some judges may be old-fashioned and they might think the mom should have custody,' he said."
What's another word for old-fashioned? Traditional, aka socially conservative. This is an isssue of judicial bias. Understanding is the answer, but that involves emotional self-awareness and empathy, both of which are aspects of emotional intelligence. And, emotional self-awareness is the foundation of emotional intelligence. Try building on a weak or non-existent foundation and see what happens. Saying that some judges may be old-fashioned is just another way of saying that their biases are such that they are unwilling and unable to consider information that conflicts with their sincerely-held beliefs. That's judicial bias at its very worst.
Patterson's article also states as follows:
"Equal rights for unofficial dads
Attorney Randy Kessler
Dads can catch up
In general, the legal default is: if two unmarried people have a child and no papers have been signed, the woman who bore the child starts out with custody.
The dad is not official. But he can catch up really quickly. He files what are called legitimation papers, asking the court to establish that making him the official father is in the child's best interest.
'This sounds oversimplified, but the court has to decide what's in the child's best interest. The problem is that decision may be a question of how that judge was raised or what that judge's values are,' said Attorney Randy Kessler."
Once again, that's about judicial bias.
Allow me to repeat what I've long said, which is as follows:
We all have personal biases, beliefs, assumptions, expectations and values, which are formed as a result of our personal backgrounds and life experiences.
The question is how much our lack of self-awareness is skewing our perception of things.
Our personal backgrounds have very much to do with our parents and how they raise us. Our life experiences have to do with everything we experience in our lifetime, including people we befriend, schools we attend, courses we take, books we read, our sources of news, etc. Ultimately, our life experiences have very much to do with our personal choices in terms of what we do, if anything, to try and broaden our worldview. If our parents didn't teach us to see things from other people's perspectives, we either need to take it upon ourselves to learn such things or we live in a false reality that our perspective is the only perspective.
Once again, this is about bias reduction, which involves emotional intelligence, the foundation of which is emotional self-awareness.
Speaking of judicial bias and the Journal of the American Academy of Matrimonial Lawyers, I would like to take this opportunity to share some exciting personal news. On October 30, 2018, I received an unsolicited call from the editor of the Journal of the American Academy of Matrimonial Lawyers. He called to see if I would be willing to write an article for publication in that Journal on the topic of the impact of bias in the legal field -- judges, mediators, lawyers, experts, etc.
He come upon my articles and book contributions and told me that he really liked my insight and writing style. He totally understands the connection between emotional self-awareness (the foundation of emotional intelligence) and empathy toward others, as well as the other competencies of emotional intelligence and how that relates to bias reduction.
I am looking forward to writing that article for publication in such a well-respected Journal.
In any event, circling back to Ling's program, the fathers talked about the fact that the court "kind of creates the beginning of the hostility" because it’s adversarial – win/lose. I'm afraid that's true.
Ultimately, the problem with viewing mediation as a field of law involves the reality that our legal system is adversarial in nature - it creates winners and losers.
Those of you in happy and healthy marriages and relationships should know that the need to win means choosing that need over the relationship. In other words, the law, by its very definition, is the opposite of relational.
Mediation, on the other hand, is very much relational in nature.
If you view mediation as a field of law, you don't understand how our legal system works and/or you don't understand how mediation works. It's really very simple, when you think about it.
To the extent that this makes sense to you, yet you had never thought of it that way, I'm afraid it's because you haven't been listening to try and understand the true nature of our legal system, the roles the various professionals in our legal system actually play, the purpose of mediation, and what well-trained and skilled mediators actually do. See, our legal system and mediation are very much related; however, to understand when one process and approach makes more sense in any given situation requires a true understanding of both processes and approaches. This is actually why I have published the types of articles I have published over the years, even though I have no control over who reads such material and what, if anything, they take away from it.
If people are actually willing to challenge themselves and think about it, they would understand that once lawyers get involved, things become less transparent. And, they might grasp the reality that distrust increases as things become less transparent. Therefore, it doesn't take a genius to figure out that when people "lawyer up," distrust increases.
If people were actually willing to challenge themselves and think about it, they would understand that communication shuts down when people "lawyer up."
If people were actually willing to challenge themselves and think about it, they would understand that conflict tends to escalate once lawyers get involved for one very good reason -- the lawyers are retained to fight their clients' battles. In fact, this is why lawyers typically refer to themselves as "warriors" and "gladiators."
These are not difficult concept to grasp, if people actually listen to understand.
If people have difficulties communicating with each other, does it make more sense to involve professionals who will "shut down" the communication or to involve professionals who will help to improve the communication?
If people have trust issues with each other, does it make more sense to involve professionals who will increase the level of distrust or to involve professionals who will help to build or rebuild trust?
If people have conflict with each other, does it make more sense to involve professionals who will increase the level of conflict or to involve professionals who will help to decrease the level of conflict?
As I alluded to, it's not uncommon for me to see posts on family law listservs addressed to "Fellow Warriors."
In his From the Chair column in the October 2017 edition of Los Angeles Lawyer Magazine, John Keith – the 2017-2018 chair of the Los Angeles Lawyer Editorial Board – wrote the following:
“It is inherent in our role that we fight other peoples’ battles, but this duty encourages us to identify with our clients and view their battles as our own.”
I'm afraid that's not relational -- quite the contrary.
The way they defined Parental Alienation on the program is as something that happens when a toxic divorce poisons a kid’s feelings for a parent they don’t live with and forces them to choose sides. Taking an adversarial approach isn't helpful in that regard, unless the help is in trying to create some degree of parental alienation, even if it doesn't result in parental estrangement.
The program then discussed the concept of imputed income. It wasn't entirely off base, in my opinion. One of the last litigated cases I handled involved an issue of imputed income. We had stipulated to a vocational evaluation. The evaluator's report included a statement from a headhunter in the field involved that my client was unemployable in that field. Yet, the evaluator imputed to him the income a person in that field for five years could earn, which was $160,000.00 per year. If the person isn't employable in that field, how is that appropriate? It was information such as this that they were complaining about in the program. In fact, they commented about the imputation of income earned at the height of a person's career, even if they can’t earn that income and the impact that has on parents who really can’t pay such support. How is that any different from what I just described from the case I handled a few years ago?
One falsehood I observed in the program and which I've seen frequently involves contempt actions for non-payment of support. To be held in contempt requires proof that the person could afford to have made the payment when it was due and failed to do so. That being said, I don't know if that's true throughout the entire country. Regardless, one point they made is that the support obligations continue being due during the period of incarceration and the person is obviously unable to work. Incarceration can then impact the person's ability to earn a living after being released from jail. This risk is similar to the types of risks discussed in the above referenced program on Domestic Violence. People should be taking such risks into account and assess whether the use of such a legal option is consistent with their end goal. In fact, on Ling's program she mentioned "how easy it is to lose sight of the end goal – healthy children who feel wanted, loved and cared for."
Ling mentioned the desire on the part of many fathers for their child(ren) to be a part of the paternal family and the system is preventing it. Ling said she can’t see how that’s in the best interest of the child and whether the child will know how many people fought for them or whether they will grow up resenting that their father wasn’t around.
The program also mentioned that the longer children are kept from a parent, the worse it gets. Does anyone disagree?
To the extent that information was conveyed in the related article by Thom Petterson titled Divorce and child custody: Men cry foul that was published by CNN and which I haven't yet addressed, I will do so now.
The article states, "Mothers often complain about getting the short end of the stick in divorce cases involving child custody, but so do many fathers."
The reason both parents in the same case make such complaints is because of a lack of perspective, among other things. Obviously, both parents can't get the short end of the same exact stick. But, engaging in a win/lose process, which our adversarial legal system is by its very definition and design, isn't going to help foster perspective-taking. I'm afraid that takes a relational approach, something true mediation does.
Petterson then says the following:
"Sometimes disagreements escalate into messy legal battles that require judges, attorneys and therapists to step in and help."
Well, once again, this is what happens when you take a win/lose approach to disagreements. Again, mediation is a relational process and approach in which and well-trained and skilled mediators work to de-escalate conflicts and facilitate problem-solving, which is the exact opposite of an adversarial win/lose approach. Once again, the beginning impacts the end.
The article continues as follows:
"Therapist Ephrat Lipton
Don't get mad
Anger can complicate a divorce by getting in the way. Angry people can easily get irritable and agitated. The solution is to channel that anger differently. Accept the situation and deal with it the best way you can.
'It's an amazing and powerful thing when you just say, 'It is how it is and there's nothing I can do about that.'"
This is talking about making emotionally-based decisions. Better decisions occur when we don't let our emotions get the best of us. In fact, according to social science researcher Brene’ Brown, “When we let emotion choose us, we are more times than not moved away from our values, moved away from our authenticity, and we move into choices that we’re not proud of.”
In 2013, I was invited to write an article for Expert Beacon with the working title Healing from past relationships so it doesn’t affect your current one. I wrote the article as if it were titled Heal from Past Relationships to Help You Move Forward with Your Life. However, the publication titled the final article Heal from past relationships to help you move on and find love. Irrespective, as has long been said, you should never judge a book by its cover. The article I wrote is not specific to romantic relationships and therefore doesn’t necessarily have anything to do with finding love, although it can be interpreted as broadly or narrowly as desired. In any event, the article concluded as follows:
“The way in which we handle the past impacts our future. We can either learn from our experiences in order to improve our lives or we can take on the role of the victim. Keep in mind, however, that we cannot improve our circumstances if we merely blame others for our fates. Although we cannot change the past, we do control our future. We can either allow life’s challenges to control to us, or we can rise above them. If we focus on the negative, we become embittered. By focusing on the future, we can feel empowered. Always remember that the best revenge is living a wonderful post-break-up life.”
Interestingly enough, there are common themes running throughout my published work and one of those themes involves the consequences of the choices we make. One such choice is whether we’re going to approach conflicts and disputes cooperatively or competitively.