Published in the Ontario Bar Association News under the
Alternative Dispute Resolution Law Section
Volume 20, No.1 – February 2012
People contemplating separation have frequently endured long periods of time, sometimes years, in unhappy, acrimonious and even violent relationships. Most of these people have experienced strong negative emotions towards their spouse for years. The limbic system and more precisely the amygdale, is responsible for some of our emotions. 2
Our ability to think and reason is interconnected with how we feel. This causes our ability to think to be diminished when we are experiencing strong emotions.3 It is the frontal cortex that is responsible for reasoning and thinking.
In family law, we throw these already emotionally taxed people into a legal process which is rooted in conflict. We ask these emotionally drained people to work with their spouse, whom they could not work with during the marriage and to make decisions that will have deep impacts for the rest of their and their children’s lives.
When separating people are asked to work with their former partner, they are usually triggered emotionally. They are asked to make decisions when they are animated by strong feelings of fear, shame, anger and resentment. We ask them to make decisions when we know their cognitive faculties are diminished. This partly explains why separating spouses find it so difficult to work together, and why so many families and children are destroyed by the separation process. The impact of this predicament can have long term devastating effects both emotionally and financially for both spouses and their children.
While we often hear that things are much better and that many cases end before parties go to trial, there is little cause for celebration. Usually by the time people settle they have gone through exhausting, scary and stressful steps in the legal system.
According to research, the type of negotiation that most families encounter during their legal journey leaves them feeling dissatisfied. Aptly said by Professor and Author Julie Mcfarlane4:[In Court] lawyers prepare for litigation and negotiation in virtually the same manner. Clients are not offered specialized negotiation techniques and strategies that could heighten their chances of a good settlement and expand the range of available outcomes. Instead, negotiation proceeds along a fairly predictable and unimaginative path of an exchange of inflated offers and counter-offers, until the distance is broken down to a point of agreement.
It leaves clients facing an unexpected collapse in their expectations when they make Offers to Settle that are not as favourable to them as the initial claims and demands made by their counsel at the outset of the [court] proceedings. Very often, offers you will have to make well into the court process will be much less favourable to you than your original offer because of a series of unforeseen circumstances in your case, exhaustion of the parties, diminished financial ability to fund the balance of the case and sometimes external pressures to settle for less in order to move away from the conflict.
Litigants are usually shocked to see the sometimes insignificant difference between the original offers to settle and the final arrangements, when legal costs are factored in. Clients are often told by their lawyers at the very beginning of the case, that they have a good case based on the legal principles disclosed. What is missing from clients’ understanding is the reality of several financial and non-financial costs associated with litigation.
Interest-based negotiation (which is used in Collaborative Law and by some mediators) is currently the most brain-friendly method. It enables clients to express why they want certain things before any request is formulated, and clients are told about the clear and predictable steps to the process. This allows the amygdale to calm down and the frontal cortex to do its job – to reason and think.
Unfortunately, only a small number of separating clients have access to interest-based negotiation. Several lawyers continue to use old style approaches to negotiation such as exchanging letters in what usually turns into years of unsatisfactory paper-back-and-forth negotiation, rather than meeting in person and allowing parties to speak about what’s important to one another.
Even mediation does not always create a brain-friendly atmosphere. Some mediators continue to use an old negotiation model and have not converted to using interest-based negotiation.
Indeed, many mediators continue to request a legal memorandum from the lawyers before commencing the case, which has the unfortunate result of deepening clients’ attachments to their “positions”.
According to authors, Robert A. B. Bush and Joseph P. Folger, 5 when we ask people to take a “position”, we make it more difficult for them to find mutually acceptable solutions. They believe that “conflict generates a sense of self-absorption: compared with before, each party becomes more focused on self alone, more protective of self and more suspicious, hostile, closed and impervious to the perspective of the other person. People tend to become more entrenched in their own position.”
Then several mediators engage the parties in the “cut the difference in half” method which surely motivates people to make unreasonable opening positions. When someone makes this type of proposal, it emotionally triggers the other party. The other party’s cognitive functions will be affected and they will react in kind, which will emotionally trigger the other spouse. This creates a dangerous chain of events.
It is our duty to offer best practices to separating spouses. I advocate for wide-spread use of the brain-friendly method of “interest-based” negotiation for all negotiations and mediation, not just Collaborative Law.
When we do not offer a brain-friendly formula, we risk being the blind witnesses of clients in distress potentially making decisions or taking action from a place of diminished cognitive capabilities.
We ought to offer families a healthier alternative to marital conflict than what is currently available.
2 As Joseph LeDoux explained in his comprehensive book, The emotional brain; The mysterious underpinnings of emotional life (Simon & Schuster Paperbacks, 1996).
3 This is well explained in David Rock’s article: “SCARF: a brain-based model for collaborating with and influencing others”, first published in the Neuro Leadership Journal, 2008.
4 Julie Macfarlane. The New Lawyer: How Settlement is Transforming the Practice of Law (UBC Press: 2008).
5 Robert A. B. Bush and Joseph P. Folger. The Promise of Mediation, The Transformative Approach To Conflict, (Jossey-Bass, 2005 x