What If There Is No Trust?
Contact: 831-429-9721 ~ crose@mediate.com
“How can I possibly work with someone I no longer trust…”
When any marriage relationship comes to an end for one or both of the parties, the issue of trust ranges from damaged, at one end of the spectrum, to destroyed, at the other. As a result, it is natural for any person to question the concept of working together regarding such critical issues as one’s future, family, and finances. However, the converse of working together is working apart. It is the nature of the legal system that when a couple chooses to work in isolation from one another, the relationship becomes increasingly adversarial.
It is well understood that litigation is a competitive negotiating system. The outcome goals become simplistic and the parties end up engaged in attack-and-defend strategies to see who can prevail over the other. Upon simple reflection, one should ask: In what other part of one’s life does this approach bring about the most favorable result?
What is true is that the competitive mode of litigation only serves to increase the impact of mistrust and to ensure that damaging consequences result from the decision to litigate which was driven by the lack of trust.
No one can do anything for anyone about relationship trust. Once it is damaged, it may never be repaired. What can be done in an effective divorce process is to identify a new type of trust—process trust. The simple fact is that the only people who can create process trust are the clients themselves. Process trust is defined very simply: If you keep the agreements you make during mediation, then the other party can come to trust those agreements, and by extension, the “untrustworthy” client’s participation in the process.
Why would clients keep their agreements in mediation? Because direct, structured negotiations between the clients, under the supervision and assistance of the mediator, offers the clients the best opportunity to come up with the most beneficial and satisfying agreement that is possible between them.
Why would the other party choose to keep agreements?
I always advise client coming into mediation that it is entirely appropriate to look out for one’s self-interest. The reality is that each of us will work to our own perceived self-interest whether we are given permission or not.
What is not so well understood, however, is the fact that neither party to a negotiation can maximize his/her own self-interest unless the other party is also able to achieve the same. The math is simple.
When clients look to the law and lawyers to protect them, they are defaulting into a system that does not have “their best possible outcome” as its goal. Simply put, the “law” is a set of rules that provide adjudications on individual issues. Nowhere does the law attempt to package all the issues in a case into a predictable outcome. When clients go to court, they surrender control over not just the individual issues, but the collective outcome as well. Faced with this reality, it is very much in each client’s interest to not do anything to destroy the process trust of mediation.
Gender Considerations
Let’s discuss practical circumstances for a minute. Stereotypes are always fraught with risks of over-generalizing but at the same time, they exist for a reason. As generalizations I can say the following about the several thousand divorce mediations I have done since 1980, when I began:
- There is a significant imbalance in knowledge and information about a family’s finances, generally favoring the husband.
- Women have demonstrated a vastly greater fear of working together because of a loss of trust than have men.
- The greatest fear for most women, at the outset of a divorce, is the worry that they will not be sufficiently protected in their dealings with their husbands.
- The support system for most women consists of family and friends. The male supporters in her system will almost uniformly encourage her to get a “good lawyer.” The implicit, and explicit, message is that with a “good lawyer” she will somehow be protected.
- Husbands tend to want to convince their wives that they can settle the issues themselves; and that lawyers and the court system will only complicate things and cost a great deal of money.
The tragic irony is, that these powerful considerations, when followed, will lead to the exact opposite of the very concerns that created them. Specifically, the wife will not be protected in any meaningful way, nor will she necessarily become as educated about her portion of the marital assets or what to do with them, as she should. The proof is in the proverbial pudding. How many people do you know who when down that route and felt good about it at the end.
Identifying Real Outcome Goals
In a classic case of not seeing the forest for the trees, most clients come into the process obsessed with the outcome. This is when the outcome is measured in financial or parenting specifics, such as these types of statements: “I want to be sure I can stay in the house with the kids”; “I’m not willing to agree to anything but 50/50 with the kids”; “I have no problem supporting my children, but I’ll be damned if I have to pay alimony.”
One of the most important tasks of the mediator is to help the clients distinguish between positions and interests. Positions sound like demands and are either implicitly, or explicitly, non-negotiable statements. It is the verbal equivalent of putting a chip on your shoulder. It is not a form of communication that gets one closer to the desired goals.
Interests, on the other hand, represent a wide variety of desires that each of us would like to satisfy as part of the final outcome. The dramatic difference between positions and interests can be demonstrated with this example. In a mediation session, the husband makes a blanket positional statement: “I will not accept anything but 50/50 with the children! “ When he is asked by the mediator, what it would mean to him to have the children half of the time, he responds: “I don’t want to be seen as any less of a parent. I also want to help them with their homework and make their lunches. I don’t want to become a ‘Disneyland dad.’ Once these and other details about the important aspects of parenting are identified for each party, the process can focus on how to best satisfy these specific needs and interests, without resorting to a formulaic allocation of the time with the children.
What is also true, is that if the parties are not engaged in structured, safe conversations about these issues, none of this will come to light and the clients will remain stuck and entrenched in positional negotiating.
Shared Goals of the Parties
Even though clients come into my office everyday very aware of their differences, I find that it is helpful to have them discover, or rediscover, the extent to which they share very profound goals and outcome objectives. The following questions I ask have consistently produced shared affirmations from clients who are about to embark on the process of divorce:
- Would it be a goal of yours to go through the divorce process in manner that would create as positive an outcome for your children as is possible?
- Would it be a goal of yours to work through your differences and create agreements in a process in which you felt safe and protected?
- Would it be a goal of yours to reach a settlement that was as financially beneficial and satisfying to you as is possible within the limits of your existing resources?
Of course these questions seem obvious and self-serving but they are asked for a very critical reason. If the parties answer in the affirmative, as they always do, then they need to know that the only way these very specific goals can be achieved is if the parties agree to commit to the following process structure:
1. Working together in a manner that treats each other with respect; engaging in full and open discussions of every issue free from criticism or judgment of the perspectives of the other party;
2. Committing to the establishment of a safe process through full disclosure of all relevant information and financial records of the marriage;
3. Refraining from engaging in any unilateral actions that would directly, or indirectly, affect the interests of the other party;
4. Making a commitment to keep the children free from the adult issues surrounding the divorce and to refrain from any negative comments about the other spouse in the presence of the children.
It is from these shared goals and the process structures that follow, that I have built the mediation process that we offer at The Mediation Center. Through trial and error in thousands of cases, these guidelines, rules and process structures have been crafted as responses to the very real needs of the wide variety of clients that have contributed to their development.
For more information, contact us at 831-429-9721 and ask for Lucy Gowan