Shooting the Messenger Does Not Solve the Problems the Messenger Raises

06/24/2016 01:38 pm ET | Updated Jun 27, 2016

On June 23, 2016, I read an article titled Measure Would Put Child Custody Battles in the Hands of Juries.  It provided that "an initiative [in California] giving people in custody disputes the right to go before a jury rather than a judge has been approved for signature gathering.”

If parents could stop trying to "win" and put the needs of their kids first, they would be mediating such issues, rather than trying to figure out whether a judge or jury would be preferable in making such a decision on their behalf. Rather than setting forth a measure that would change the default from litigation to mediation, they put forth a measure to give more choices in how to litigate. Meanwhile, the research is abundantly clear that custody battles are harmful to children.

Texas allows jury trials for child custody matters. Therefore, if you think it can’t happen in California, you’re wrong.

For years now, I have been pointing out the often overlooked variable in family law litigation – Judicial bias. At least with juries, the personal biases, beliefs, assumptions and values are spread out over the jury panel. This is not to say that I like the idea of jury trials for child custody matters. However, it is to say that I have been pointing out the realities of the situation for a very long time and the family law community has opted to completely ignore me.

As an 8 year Certified Family Law Specialist in Los Angeles County told me on June 22, 2016, "[my] opinion doesn’t care carry much weight in this community." 

Sadly, he's correct, which I've found fascinating, considering that the "community" to which he was referring consists of a group of professionals who haven't worked with me and are familiar with me merely by reading some of my comments and articles (assuming they have) and comments made by others who haven't worked with me and aren't otherwise familiar with me.

I realize, as I’ve been told as recently as May 25, 2016 while attending a Family Law Section meeting for the Beverly Hills Bar Association, that I am the most hated member of the listserv for the Family Law Section of the Los Angeles County Bar Association. In fact, I was compared to Donald Trump, Hillary Clinton and Adolph Hitler.  Such a comparison isn't funny, especially considering that I'm not a politician or a fascist, but rather a mediator and peacemaker.

In point in fact, consider the following email I very recently received from a member of the listserv for the Family Law Section of the Los Angeles County Bar Association:

"I just wanted to say those were some seriously poignant questions you posed to **** and the Listserve. Looks like some didn't appreciate it (as usual), but just know that others like myself thought instantly that that was a message as potentially impactful and educational as any other code or case ever posted.

I found it ironic that the Listserve monitor shut down the thread only after you provided substantive content and a civil critique (like the best posts from *** ***). I couldn't delete the original post fast enough with the subject titled 'I'm on front page of Daily Journal'.

You turned a highly self-serving Off-Topic post into a valid teaching point, and THEN it gets shut down?! Wow. We'll talk about it later and laugh.

Keep up the great work."

While "the powers that be" on the listserv for the Family Law Section of the Los Angeles County Bar Association and many in that "community" don't believe I have anything worth contributing, very well-regarded colleagues outside of "this community" have a very different reaction to those same comments and articles.

For example, Larry Sarezky, a veteran divorce attorney, producer of the award winning film about custody battles titled “Talk to Strangers” and author of the recently published book titled "Divorce, Simply Stated: How to Achieve More, Worry Less and Save Money in Your Divorce" has given me the following testimonial on LinkedIn:

"WE NEED MORE LAWYERS LIKE MARK BAER! Mark is a true student of the law who uses his vast knowledge, experience and wisdom to find creative, compassionate and effective solutions for his clients. And in the process, he winds up educating his colleagues!"

He also included me in the Acknowledgment section of his book as follows:  "And special thanks to attorney Mark Baer for his work to make this book better."

Terry McNiff, another veteran divorce attorney, and one who was included in Larry Sarezky's Acknowledgments in his book "Divorce, Simply Stated" posted the following comment in the Family Law Professionals LinkedIn group a year ago, in response to a discussion pertaining to my article titled "How To Select The Best Mediator Is a Must Read for Everyone:

"Mark,

Your prolific posts prove you're on a mission to help families and children.

Your referenced writings contribute so much significance that I added you to the list of esteemed contributors to the "Family Law Techniques and Trial Tips" chapter of the 2015 Los Angeles County Bar Family Law Reference Book.

The Reference Book will be distributed to 400-500 lawyers and others attending the Family Law Symposium May 2, 2015.

Keep up the great work!" 

For what it's worth, I responded to the 8-year attorney who made that lovely comment as follows:

"That depends upon who you ask. If my efforts to make family law more child centered and less adversarial because families and kids are involved is offensive to the family law attorneys making bank off of chaos and destruction they cause don't like me and my efforts, I take that as a badge of honor."

However, my lack of acceptance is by no means limited to the family law litigation community.  In fact, on February 25, 2016, I published an article titled "My Disconnect with Many in the Collaborative Law Community."  

Meanwhile, in her recently published article titled "Protecting Your Profile", Joryn Jenkins included me as a "collaborative pioneer", along with such esteemed colleagues as Stu Webb, Ron Ousky, Pauline Tesler, Linda Solomon, and Lana Stern.

The More I Read, The More I Learn And The More I Learn, The More I Realize Why Lawyers Tend To Be So Screwed Up. Any wonder why I am trying to focus my attention on mediating and hopefully not when such attorneys are involved?

Interestingly enough, the polar opposite reactions to my comments and writings are by no means limited to the professionals involved in the field of family law.

For example, a week ago, Leading Women for Shared Parenting posted the following discussion in the Child-Centered Divorce LinkedIn group:

"Open Letter to the Professionals Belonging to Child Centered Divorce.

We've enjoyed being in the group, for well over a year. During that time, we post one story per day. Also during that time, we've been continually trolled by Mr. Mark Baer. Originally, we complained about the trolling to the group moderator, to no avail. As such, we simply ignored Mr. Baer. Recently, Mr. Baer has continued to troll our posts, but repeatedly added VULGARITY in response to our posts. LW4SP represents a group of professional women including elected officials, Doctors, lawyers, researchers, social workers, psychiatrists, psychologists, journalists, domestic violence professionals, and others who have worked extremely hard to achieve success. We expect to be treated with due respect, the same degree that should be afforded to all in the "Child Centered Divorce" group. As Mr. Baer continues to troll our posts, we'd like to ask members what type of group they desire. One with professionalism, or one where trolling and Vulgarity are allowed. We welcome your responses as to what this group truly represents. Thank you. LW4SP"

Most of the people making comments in that discussion came to my defense, including James Schweikert CBPT, who responded as follows:

"LW4SP provides only two choices- We either desire [a group] with professionalism, or one where trolling and Vulgarity are allowed. Foul play! They add: 'We welcome your responses.' I have to call bullshit on that last part. Oh, strike that your honor. Based on your open letter, its not clear you welcome responses you don't like, but I'll bite. I like a group that respects, not fears freedom of speech, one that is tolerant even of one-a-day posting, which many might consider excessive or unwelcome. I desire a group like this, one with depth, candor, diversity and rich experience such as that brought by members like Mr. Baer.

'A certain amount of opposition is a great help to man. Kites rise against, not with, the wind'. Lewis Mumford" 

For what it's worth, the vulgarity they referred to was my previously calling bullshit on them.  

Others, such as equal parenting advocate, Peter Szymonik commented, "Mr. Baer is a dinosaur and he is well aware of it."

However, at the same time, just this morning, in the Power through Collaboration LinkedIn group, Njideka N. Olatunde, ND, PhD, MSW, CRI commented as follows:

I have great respect for the comments and information that Mark B. Baer shares on the legal aspects of child custody and parent's right. His views are needed so that we can see and understand both sides of the issues. His comments have been very helpful in the work I do helping father's understand the legal system. Thank You!"

Until this weekend, I couldn't comprehend how so many people could have such polar reactions to my comments and writings.

My epiphany came when I read David Brooks' article titled "At the Edge of Inside" that was published in the New York Times on June 24, 2016.

Charlotte Wittenkamp, a core member and fellow moderator of that group who refers to herself as a "Bridge Builder," posted that article in the Power through Collaboration LinkedIn group with the following comment:

"Are you Them, Us, or a mediator?

The setup discussed in this piece applies in politics, among nations and the people living in them, in organizations - perhaps trying to be inventing their next big thing while cannibalizing their core product. Which role are you playing?"

I responded as follows:

"The past chair of the Family Law Executive Committee of the State Bar of California told me that he felt that I was the bridge between the family law community and the mediation and collaborative law communities. Maybe, that's why I don't feel as embraced by any of those communities as people at the core. That is less a reflection of my skill set than it is on the role I've taken on as an advocate for changing the system.

I'm often told that my perspective is balanced on a variety of issues, so I'd say that I am a mediator, which is a good thing, since I do that professionally."

Charlotte replied, "Thank you, Mark B. Baer, for giving an example of this principle from outside the political arena described in the article."

Another core member and moderator of that group, Haridoss Sarma, then said, "The term and practice of Boundary spanning or cross-boundary leadership is often used in the innovation and R&D situation. The boundaries of any system, bio, Eco, country, or organization, are frontiers of change and growth. To be 'within' and 'without' requires a special set of skills as Mark Baer states in his comment. Metaphorically, a boundary spanner or the one at the edge of the inside is like a 'drum' that gets beating from both ends but resonates with a synchronous tone."

Paul Weismantel, yet another core member and fellow moderator of that group posted the following comment:

"Nice find, Charlotte. Living on the edge inside an organization is the very definition of where a great Product Manager must exist. Many get drawn into the center by mistakenly falling in love with their product or service and loose the perspective of the customer (an outsider) and substitute enthusiasm for insight.

As Mark points out, it is a lonely place to live but critical in bringing the views of customers into focus and to develop a deep understanding of how your competitors think free from the veil of tribal emotions."

I replied as follows:

"It certainly can be 'a lonely place to live,' Paul. In fact, a LinkedIn colleague from New Zealand, Pamela Williamson, sent me an email on May 17, 2016, which stated in pertinent part as follows:

'Hello Mark I hope you are really well and crackling along! I just wanted to share something with you. I do t know how you do all you do. You really put yourself out there and have the confidence to take on all comers! What you say is insightful incisive and dangerous. What I mean by dangerous if that you cut through all the bs and assert your views without fear or favour. You do a great service to the legal community by being so steadfast yet non-dogmatic. I admire your posts tremendously. I worry for you though. Going out on a limb can be a lonely experience I know. I hope you have very supportive close family and friends AND colleagues.'

My response to that colleague was as follows:

'I do appreciate your concern. It does take a great deal of courage and it can be incredibly lonely. Fortunately, I do have very supportive close family, friends, and colleagues.'

Fortunately, as Jim W. Hildreth, a mediation colleague in Northern California whom I've never met personally and only know through Facebook posted the following on his Facebook feed just yesterday:

'What I like about Mark Brian Baer Esquire is his passion to change the status quo, often riddled in dysfunction and self directed-interest. Throwing money at the problem is not always the solution.'

It therefore seems as though I haven't lost 'the perspective of the customer (an outsider) and substitute enthusiasm for insight.'" 

After having read David Brooks' article, recalling recent emails and postings about me from from friends and colleagues and engaging in discussions pertaining to Brooks' article, I now understand why I don't feel as embraced by any of those communities as people at the core of any such community. 

Meanwhile, the harm colleagues and others who bad mouth me because I'm "a person on the edge of the inside" have caused to my name and reputation is defamation per se (defamatory on its face), as I've been told by attorneys who handle such matters. Fortunately for them, I am not an advocate for the use of our "justice" system for addressing such things. 

Charlotte Wittenkamp was absolutely right when she posted David Brooks' article in the Power through Collaboration LinkedIn group and titled the discussion, 

"Are you Them, Us, or a mediator?"

Consider the following testimonials from two mediator colleagues of mine:

"I respect his willingness to 'stir the pot' in the name of enlightenment. Mark is a forward thinker who truly cares how families will function following a divorce. I am so proud of Mark’s rising success in the field—in many ways he is a poster child for a successful peacemaker." - Forrest (Woody) Mosten

"Often, it is difficult for one mediator to assess the skill set of other mediators. However, in the more than 5 years I have known Mark Baer, I have not only read his articles and blogs, but have been involved on panels with him on mediation related subjects, and have had hours of conversations with him on a variety of subjects. Mark is one of the most empathetic people I have known. This, combined with his incredible understanding of the process tools available to mediators, his intelligence and insight into human behavior and psychology, makes Mark Baer, in my estimation, one of the most effective mediators I have known. He is able to discover, and effectively deal with, not only the obvious issues, but also those below the line issues which often makes the difference in conflict resolution. He is deeply committed to peacemaking, and is fearless in his commitment to the collaborative process." - Len Levy

Those testimonials can be found on my LinkedIn profile, along with similar testimonials from other well-regarded mediators, peacemakers and collaborators.

I'm a mediator, both professionally and the core essence of my being.  Empathy is the key to conflict resolution and the core of empathy is perspective-taking.  "A person at the edge of inside can see what’s good about the group and what’s good about rival groups."  When all is said and done, "a person at the edge of the inside" is perspective-taking.  

For what it's worth, I happen to be a “Renaissance man,” which is defined Merriam-Webster’s Collegiate® Dictionary as “a man who is interested in and knows a lot about many things.” I’ve been called a Renaissance man on many occasions and didn’t even know what it meant until I bothered looking it up after being called such on enough occasions.

I read a great deal in a variety of subjects and engage in discussions with all sorts of people on these various subjects. As such, I happen to have my finger on the pulse of society to a very good degree, which is why my articles tend to be so timely.

Ignoring me, when I happen to have my finger on the pulse of society is not a very wise thing to do, regardless of whether or not you agree with my opinions. In fact, on June 22, 2016, Thomas L. Friedman published an article in the New York Times titled "Another Age of Discovery" in which he spoke about "Our New Renaissance and compared it to "the period 1450 to 1550, known as the Age of Discovery. It was when the world made a series of great leaps forward, propelled by da Vinci, Michelangelo, Copernicus and Columbus, that produced the Renaissance and reshaped science, education, manufacturing, communications, politics and geopolitics."

I'm by no means comparing myself to any of those individuals; however, I am stating that to the extent that I happen to have my finger on the pulse of society by virtue of what it is I do, being disrespectful, demeaning and dismissive of me is not the answer.  

As Charlotte Wittenkamp wrote in her article titled Creativity, Innovation, Part 2, "And finally there are the people that know a lot about many fields. Vojac refer to M-shaped (three areas of deep knowledge) or comb-shaped when they are really broadly and deeply informed. They used to be called Renaissance People; like Leonardo da Vinci living when people actually talked seriously about angles dancing on top of needles. The interesting point is not what we call people or finding a new way to describe brilliance. The interesting point is what happens when you can apply something you learned in one setting to another field."

When the United States wants to stop treating children as chattel (property / possessions of their parents), things may change for the better.  The same is true of when the United States wants to focus on actually solving problems, rather than addressing disputes by playing the "blame-game."  My article titled "I Call Foul on the Media's Coverage of Divorce and Conflict in General" is by no means specific to divorce or even family law. Furthermore, what I've been saying for a very long time about the need for empathy in the legal field was substantiated in an article by Jill Suttie titled "Do We Need More Empathic Judges?" that was published by Berkeley University on June 22, 2016.  

Shooting the messenger does not solve the problems the messenger raises.  In fact, I'd opine that it actually escalates conflict by causing things to fester as they remain unaddressed.  

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