“You explain to people first, why is it that I think what I think? You’re not trying to prove a point. Law is not mathematics. If I am a mathematician, I am trying to prove why ‘A’ follows from ‘B.’ But this is not the nature of this discipline. The best I can do is explain to a reader what my reasons are for adopting this particular conclusion.” So said Supreme Court Justice Stephen Breyer on legal writing. The same can be said of client’s positions.
We learn, in law school, to argue both sides. We assemble the facts, we identify cases and statutes that support those facts and we weave the facts and law together into an argument to convince the judge, or the other side that we are right. Of course, the other side does the same thing. We are each trying to prove a point, and win.
In most litigated divorces the lawyers are trying to win. Unfortunately, when one side wins, the other loses. This is of no value to the family. The “losers” in the family will not be able to function well. Which means the family will not be able to function well. What is of value is to have a resolution that takes care of everyone’s needs. Instead of trying to outwit, out-argue and “beat” the other side it is much more valuable to try to understand why they think or feel the way they do. This is best accomplished when both sides can meet together and explain themselves. Mediation and Collaborative Divorce offer the best opportunities for such explanation and understanding to take place. In those practices when you hear an idea you don’t agree with, instead of arguing and being defensive we say, “Tell me more”. 99% of the time the “more” that is told leads to better understanding and creative solutions.
My favorite example of this is the father who asked for 50/50 shared parenting time. I fear I rolled my eyes, thinking, “Here we go again.” Luckily my training kicked in and I asked him what equal parenting time meant to him. What he told me, and his soon-so-be-ex was that his parents divorced when he was the same age as their son. He didn’t see much of his father after that and he never knew if it was because his father wasn’t making the effort or his mother was keeping him from him. He didn’t want his son to have to wonder about that. The impact of that statement in the room was palpable. The mother didn’t argue against Dad having time with their son. She acknowledged how important it is for their son to have his father in his life and agreed that she would never want the child to have to worry about not seeing his Dad. From there they were able to work out a parenting plan that, in fact, was not 50/50 but that worked with their schedules and assured Dad’s constant, meaningful presence in the boy’s life.
Teresa Ombres is a graduate of Fordham University and New York Law School and is admitted to the practice of law in the States of New York and New Jersey. She began her career in divorce and family law in 1981 and began mediating in 1996 after trainings in Community Mediation and Divorce Mediation.