THE BLOG
07/28/2015 03:34 pm ET | Updated Jul 26, 2016

When Divorcing, Beware of Meddlers!

I was recently contacted to potentially mediate a litigated divorce matter prior to trial, which is rapidly approaching. My name had been included on a list from the attorneys, along with two other mediators.

Interestingly enough, the person who contacted me was the wife's mother, who had left me a voicemail message. She left me her phone number, as well as that of her daughter. I decided that since it was her daughter's divorce, I would call the daughter.

As it turned out, it made no difference because her mother answered the phone and grilled me. Among other things, she told me that her daughter needed to be protected and that she therefore needed to attend the mediation.

It didn't seem to matter that her daughter was represented by well-qualified counsel, who could attend the mediation. She also proceeded to tell me things that really shouldn't have been said at that point in time, especially since a mediator is supposed to be impartial. One of the things that I probably didn't need to hear at that stage was that the only reason that the case hasn't settled is because the husband is being difficult merely for the sake of being difficult.

In any event, I told her that as long as the parties and their counsel agreed to her presence at the mediation, it was fine with me. I then asked her whether or not she had a good relationship with her son-in-law. She told me that they didn't care for each other at all, to say the least. I then asked her what made her think that her son-in-law would agree to her presence at the mediation, considering that she is not a party in the divorce and since she and her son-in-law dislike each other to such a degree. She continued telling me how much her presence was necessary for her daughter's protection.

I then explained that people frequently confuse "conflict resolution or management" with "dispute resolution." Conflicts are emotional and disputes are fact-based. Legal disputes, divorces included, are typically resolved through litigation or litigated negotiation, which are adversarial processes and thereby exacerbate the conflict in order to resolve the dispute. Assuming that she is correct as to reason the case hasn't yet settled, what is needed is "conflict intervention," which I do in the course of my mediation work.

I then asked her how she thought that her attendance at the mediation would impact the level of conflict in the case. She admitted that the level of conflict would likely increase significantly if she were to attend the mediation. Then, out of nowhere, the wife suddenly entered the conversation. You see, she was apparently listening in on the conversation the whole time and allowing her mother run the show.

I then mentioned that the higher the conflict, the longer it typically takes to resolve disputes. I again reiterated that if everyone else was fine with her attending the mediation, I could care less and was merely pointing out things they may want to consider.

In case you couldn't figure it out, I never again heard from anyone about the possibility of my mediating the case. After all, people don't like it when you tell them things they don't want to hear.

The following is a quote from my article titled "Navigating the Emotional Waters Within Collaborative Family Law":

"In high-conflict cases, where family and friends 'choose sides,' it can keep the divorcing couple from working cooperatively.... In many cases, parents, grandparents, siblings and friends do not know how or do not feel entitled to grieve a divorce within the family. Their avoidance of their own grief and hurt can play a big role in prolonging the conflict. In order to avoid their own feelings, friends and family members may support one person's views, even if distorted, and align themselves with that person's position.

Although family and friends' alignment with a divorcing person may feel supportive to that divorcing person, they may only be providing a foundation for continued conflict. Awareness that friends and family are taking sides can encourage high-conflict and only prolong grieving and hinder healing (Erlich, 2001).

Family and friends, along with other third parties such as child specialists, therapists, and lawyers can help reduce conflict when they understand that grieving is important and is in the in the best interest of the divorcing person. Divorce is not an event, but rather a legal and emotional process that a divorcing couple must go through.... (Livingston R. M., Grief and High Conflict Divorce, 2012)

Caving into such internal and/or external pressure might result in accepting a settlement offer against your better judgment."

Ironically, I wrote that article specifically for a panel presentation I was asked to join at the American Bar Association Section of Family Law 2013 Spring CLE Conference and it relates to the topic of my next panel presentation for the 2015 Fall Conference for that same organization.

The title of that program is "The Ethical Do's and Don'ts of Knowing When Three's a Crowd." The program description is as follows: "This program will address the ethical do's and don'ts of 3rd party involvement in our family law cases from the payment of fees to a determination of who and who is not the client--and a lot more in between." I was asked to participate on the panel because they thought that my "skills and background in mediation would provide a really good perspective to the program."

During the course of my preparation for the program, I came upon a wonderful article by Sam Margulies titled "When Friends and Family Get Divorced - Giving advice to divorcing friends can often do more harm than good," that was published in Psychology Today on March 25, 2009. The article states in pertinent part as follows:

"One of the most common and most destructive phenomena in divorce is what I have come to call the Greek Chorus Effect. It appears that divorcing people attract well-meaning friends, relatives and bystanders, many of whom think they should offer advice on how to manage the divorce. And for reasons I'll never understand, the message invariably encourages suspicion, fear and fighting....

The result of the Greek Chorus refrain that 'you're going to get hurt' is that the divorcing person is panicked and encouraged to act aggressively against the spouse. So the very people who most need reassurance and calming end up frightened and alarmed. So what do your friends really need from you? First, they need reassurance that you will be there for them and that they have your support. But support does not mean support against their spouses. It means that you will be there to listen, to offer encouragement and provide companionship when they need it. Divorcing people often feel isolated because some friends are so uncomfortable that they distance themselves. Divorcing people need reassurance you will not abandon them. They need you to stay close. Staying close isn't the same as taking sides. The divorcing person needs you to support peace rather than fighting.

If you are a parent of someone getting divorced, stay out of the fray. Don't encourage fighting. Encourage peace. Spend extra time with your grandchildren but don't say negative things about your soon-to-be-ex-son or daughter-in-law. The key to decent divorce is counter-intuitive behavior. People can act out their immediate feelings of fear, anger and betrayal. This may feel good in the short term but does great harm in the long term. Or, they can manage their feelings and pursue their interests. You can be the voice of reason and reassurance rather than a further source of anxiety.

If you do these things you will make an invaluable contribution to your friend and your friend's children."

I also came upon plenty of material on the importance of not alienating your child's ex, especially when there are children of the marriage. One such article is by Katherine Kam titled "What to Do When Your Children Divorce - Tips for parents whose son or daughter is getting divorced," that was published in WebMD. Another article is titled "How to Live Through Your Child's Divorce - Expert tips for being supportive and staying connected to your grandkids" by Claire Berman. Yet another article I found was "The Psychology of Divorce" by Donald T. Saposnek, Ph.D. and Chip Rose, JD, CFLS. That article addressed a phenomenon the authors described as "tribal warfare." The stated the following in that regard:

"In the process of developing a position during a conflictual divorce, a spouse typically is surrounded by an increasing cadre of supporters. These are friends, relatives, and professionals who, after hearing only one side of the dispute in vivid, distorted, and compelling detail, rally to that spouse's side. Viewing that spouse as victimized by the other spouse, they seek to right a wrong and protect the spouse from being further victimized. Johnston and Campbell (p. 25) elaborate on this dynamic:

'The total effect is that, in the absence of socially-agreed-upon customs and etiquette for organizing postdivorce relationships and dealing with conflicts of interest, there is considerable ambiguity. Consequently, the social networks of the spouses are incorporated into the dispute and the dispute is solidified, maintained, and stabilized by the support of others. New partners, extended family and kin, mental health professionals, and lawyers fuel the fights and in some instances take on the dispute as their own. As the conflict escalates and spreads, the primary players may not be the two divorcing partners but all these others who are not party to the stipulations, court order, or legal sanctions.'

This support by the associates of each of the spouses takes on the complexion of tribal warfare, with parallels to the ways that we stereotypically imagine primitive villagers dealing with their conflicts. The sides are drawn, the supporters are garnered, and war is declared. Unfortunately, the toll taken on the children in this insidiously dysfunctional social process is legend (Wallerstein & Kelly, 1980; Wallerstein & Blakeslee, 1989). Researchers and clinicians for years have interviewed and counseled countless adults who recall vivid childhood memories of their parents' conflictual divorce experience as a living hell of divided loyalties, forced court-ordered examinations, pressure to take sides, and the absence of any sense of security, safety, trust, or sanity."

Since I was already well-aware of this information, my most amazing discovery was a case that was decided by the Supreme Court of British Columbia, in which the court ordered the meddling grandmother to be jointly responsible with the wife for the husband's legal fees. The grandmother's conduct was found to be "reprehensible" and the court described the specific reasons for such a finding. Sadly, I was not at all surprised, but was thrilled that the meddling grandmother was held financially liable.

In any event, I am really looking forward to presenting on this topic at the ABA Section of Family Law 2015 Fall CLE Conference in October. Issues stemming from the "Greek Choir" or "Shadow Parties" create huge problems in family law matters and the section has never before addressed this topic. My advice - beware of meddlers!