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This afternoon, I attended the monthly lunch meeting for the San Gabriel Valley Psychological Association.
As luck would have it, I was seated beside a psychologist who mentioned that he works with many adults going through divorce.
I asked him what his help entails. Unfortunately, all of his responses were as expected. The reason I say “unfortunately” is not because he shouldn’t be assisting his clients with stress management, their coping mechanisms, anxiety, depression, and other such things, but because of his “help” with regard to the divorce itself.
You see, he advised me that among other things, he helps his clients to assess whether or not their attorneys are zealously advocating for them effectively, in what he described as high conflict divorces. In the event the attorneys are not effectively zealously advocating for them, he assists them in finding an attorney more effective in that regard.
You may be thinking to yourselves that this psychologist is doing his clients a great service in doing such things, so why am I referring to it as “unfortunate.”
My reasoning involves the education and training psychologists and other licensed mental health professionals receive, as well as their “job description.”
First, let’s start with the definition of psychology. The American Psychological Association defines it as follows:
“Psychology is the study of the mind and behavior. The discipline embraces all aspects of the human experience — from the functions of the brain to the actions of nations, from child development to care for the aged. In every conceivable setting from scientific research centers to mental healthcare services, “the understanding of behavior” is the enterprise of psychologists.”
According to the American Psychological Association,
“Psychologists who provide clinical or counseling services assess and treat mental, emotional and behavioral disorders. They use the science of psychology to treat complex human problems and promote change. They also promote resilience and help people discover their strengths.”
In his book, Mediating Family Law Disputes and Avoiding Adversarial Violence, Thomas Digrazia says the following:
“[C]urrent brain science teaches that conflict (which also according to Krishnamurti, ibid, p.54, arises from ignorance of self) comes from different sources. However, the primary conflict source is the genetically triggered freeze, flight or fight response....
The limbic brain is where issues of daily survival are processed. In the early years of human existence, when we were more likely to be the hunted rather than the hunter, the limbic brain was called upon to make instantaneous life saving judgments. For instance, when confronted with a new danger—a large carnivore or other threatening human species, we had to decide whether we would freeze in place, flee or fight.
We Homo sapiens survived on the ability of the limbic brain to process potential death threats in the wild. Over the eons, the brain has evolved. Our thinking intelligence now predominates in the neo cortex or frontal lobe of the brain. This part of the brain uses past knowledge and sensory information to learn how to drive an auto, work a computer or learn a new language. It is a much more deliberative and intellectual part of the brain, and capable of abstract thought....
When conflict goes right to the limbic brain, it instinctively goes into freeze (do nothing), flight (ignore reality) or fight (hire the most aggressive and expensive lawyer you can—sometimes even agreeing to place a lien on your home to pay exorbitant legal fees to your chosen warrior) mode....
According to Dr. Daniel J. Siegal, a neurological and child psychiatrist, in his book called, Mindsight: The New Science of Personal Transformation, from a physiological perspective when the nervous system is receptive and an individual is centered in the prefrontal lobe, facial muscles and vocal chords relax, normal blood pressure and heart rate are enjoyed. We are more creative and open to what the other person is stating or proposing. By contrast, when the nervous system is reactive, we are in a limbic or survival mode, physically and emotionally. According to Siegal, in a reactive state, “…we distort what we hear to fit what we fear.” This causes us to hear (which is a physical act) without listening (which is a neocortical, cognitive event).”
Because of how our brain works, the particular psychologist I mentioned and a great many others, including psychologists and other licensed mental health professionals, are harming people, regardless of whether or not it’s intentional.
Digrazia explains the disconnect as follows:
“When unprocessed emotions, which are a form of self-ignorance—fear, anxiety, insecurity, hit the pavement of an adversarial divorce system, legal warfare is the most likely result. The only real limitation on legal warfare is the emotional and financial exhaustion of the parties.
The emotional disturbance within divorcing disputants is prey to the endless legal arsenal of motions, discovery procedures, hearings, appeals and other stratagems. In the zero sums, take no prisoners legal game of divorce—there is little room for vision. The parties to conflicted divorce are usually stuck in the past. This is a past filled with perceived broken promises and unrealized dreams.
The adversarial divorce approach spends most of its time, sometimes inadvertently and sometimes not, roaming in the dead past of marital memory and not in a transformative vision of the future. Parties and their lawyers spend most of their time preparing to defend or offend each other through the arcane and myriad channels of divorce law.
Lawyers are a further source of conflict in that, as advocates for their clients, they are warriors in the adversarial divorce process. Their role in our culture of divorce, as first established early in their law school ethics training, is to be zealous in representing the perceived family and financial interests of their clients. As a zealot (defined as one who acts zealously, especially excessively so; a fanatically committed person), lawyers by disposition and training are not predisposed to a spiritual, non-violent approach to conflicted divorce. Their motivation is not non-violent, as defined by the Dali Lama at the outset of this chapter. That is, their behavior as a zealot is not normally ‘…motivated by the wish to be useful or helpful.’ Rather, their primary motivation is quite narrow: to only successfully represent the perceived individual interests of their client (as well as their own financial interests) at the consequential expense of the other party, family and society.
At least in their legal work, most divorce lawyers are not inclined to cultivate a meditative mind—a mind that is in the present moment, observing and not judging another—either for themselves or encouraging such a mind for their clients. The failure to develop and utilize a meditative mind or mindfulness on the part of most lawyers presents a major failure to find peace within oneself and to help clients and others end conflict.”
You may be thinking that possibly the psychologist in question was unaware of the true nature of our legal system, which is “adversarial violence”, as referenced in the title to Digrazia’s book. If that’s the case, it’s due entirely to a willful lack of knowledge or information. If you’re wondering how I know that, it’s because I have been publishing articles on that subject since September 2008 and I began publishing articles when I was given a Psychology and Family Law column in the San Gabriel Valley Psychological Association’s bimonthly newsletter, which exists to this day. That newsletter won the Award for Most Outstanding Newsletter from the California Psychological Association in 2010 and again in 2015. Moreover, my column was a named-factor in its receiving that award in 2010.
Over the years, most of my Psychology and Family Law Columns have been about misconceptions with regard to our legal system and the unfortunate consequences that typically ensue. One of my columns was actually titled Domestic Violence as a Tragic Toll of Divorce. All of my columns that have been published in that newsletter can be found in the Articles section of my website.
Furthermore, in 2012, I co-presented with Linda Bortell, Psy.D. at the San Gabriel Valley Psychological Association’s monthly lunch meeting. Our topic was Facilitating Rational Problem-Solving In An Otherwise Destructive Divorce Process.
Lest you think that Digrazia and I are the only people who consider litigation and adversarial negotiation violent, the following is an excerpt from my article titled When Hiring a Lawyer or Mediator, Buyer Beware, that was published by Psychology Today earlier this month:
“Vincent Cardi’s article, The Law As Violence: Essay: Litigation As Violence, published in the Wake Forest Law Review in 2014, ended as follows:
‘Making lawyers and the public more aware of the serious psychological harm to those involved in litigation is a moral obligation of the profession and would likely lessen the harms over time. As attorneys, we each have a moral obligation to know who will be hurt by our actions and a professional obligation to tell our clients of the harm that will likely accompany litigation....
Professor Daniel W. Shuman points out studies showing that delays in the litigation process are a particular cause of psychological harm to litigants....
Because an awareness of the likelihood of psychological suffering could be expected to deter some clients from filing suit, attorneys have a financial incentive not to advise the client of these problems. A court rule requiring attorneys to inform their clients of the serious psychological harms that often accompany litigation might be appropriate.’”
Meanwhile, the empirical support from at least nine different studies reflects the following:
“Couples would be wise to be aided by [well-trained] professionals [who take a facilitative approach.]” Such an approach focuses on helping parties carry out a smooth, open conversation. Many divorce attorneys have begun to adopt a more facilitative approach—for example, by trying to de-escalate conflict and improve the quality of the relationship between the divorcing spouses. Study participants whose mediator or lawyer took a facilitative approach to the negotiation, as measured by their tendency to engage in problem solving behaviors and help their clients focus on interests, generally reported high-quality outcomes.”
Digrazia explains it as follows:
“When choosing some of the ADR models summarized above, such as mediation, collaborative law, Educated Divorce, and the multidisciplinary team approach, participants reside more in the neocortical, frontal lobe part of their brains. This type of brain residency allows for a much more nuanced observational, intuitive and skillful response to the transformative marital dissolution challenge posed for individuals and families.”
Rather than grasping that well-trained facilitative lawyers and mediators can use their knowledge and skills to de-escalate conflict, build or rebuild trust and improve communication (among other things), the psychologist referenced in this article and a great many others claim to be helping people by encouraging them to enter into or remain in the adversarial process with lawyers who are more effective warriors.
There are ways of changing the paradigm from adversarial to facilitative. One way I’ve found effective is providing people with information from which they can better understand cause and effect with regard to litigation and conflict.
It never ceases to amaze me that people regularly contend that they can’t enter into a facilitative approach because they’re in conflict with each other, can’t communicate with each other, and don’t trust each other. Interestingly enough, lawyers and mediators well-trained in a facilitative approach have the knowledge and skills to de-escalate conflict, improve communication, and build or rebuild trust. In fact, that’s why facilitative mediation is called conflict resolution. In addition, “empathy is the key to conflict resolution or management.”
As Digrazia mentioned in quoting Kenneth Cloke, “a non-violent approach to conflict resolution... [involves] promoting trust and empathy in relationships.”
In any event, the reason I said that all of the psychologist's responses were as expected is because the mediation and collaborative law communities are well-aware of the challenges they face in that regard. Actually, that's why I cover the topics I do in my Psychology and Family Law column in the San Gabriel Valley Psychological Association's newsletter. After all, the members of the group are predominantly psychologists and other mental health professionals. Apparently, however, many either don't bother reading my column, the information conveyed doesn't register with them, or they willfully ignore that information.
