Governor Sanford – Give Marital Mediation a Try!

by Laurie Israel, Esq.

Like many of you other mediators out there, I am always very pained to read accounts of our celebrity brethren who are struggling with their marriages. The media is insistent. The klieg lights focused on these people in distress are glaring. They are experiencing their own personal marital problems, but under a microscope of public view. The problems they face are identical to those of my mediation clients. The big issues are infidelity, money (too much or too little of it), perceptions of lack of contribution, boredom, lack of respect, spending no time together, and issues raised by difficulties with children or in-law families. They are all textbook issues, and they appear repeatedly, often ending in divorce.

Many of my law clients who are divorced and in second (or third) marriages tell me, “If I only knew then what I know now …my first marriage could have worked out.” Sometimes it takes one or two “training marriages” to achieve the personal maturity and insight that permits a person to live with another for an extended time. Is marriage supposed to be forever? Is that concept reasonable? Ask a couple with a decent marriage of upwards of 30 years if they would trade their well-worn marriage for a new one. Most people would say they would not. The benefits of being with someone and having love grow, wane, and grow again far outweigh that new love, which will just become old with time. Maybe humans are monogamous but with a tendency towards sexual pleasure seeking which can strongly pull a good marriage off its tracks.

Governor Sanford’s confusion and emotional pain were clearly evident in his press conference in South Carolina on June 24 upon his return from Argentina. My feelings towards him are those of pure sympathy. I view Governor Sanford as a very typical married person who is facing a chasm in his marriage and a huge decision on his life path. Will he return to his marriage, or will he stay on the side of the abyss with his Argentinian paramour? Will he choose to go off into the sunset with his “soul-mate” – a woman who not only looks very like his attractive and good wife, Jenny, but, in a few years, will be identical to her, because he will simply have traded in one marriage with a very good person for another marriage with a good person?

Marriage is marriage. We, as humans, are really all the same. It’s what you do with your marriage and inmarriage (and in your own life) that’s the important thing, not so much who you marry.

One thing that people in affairs must do if they are to continue in their marriage is to give up the affair completely while they are working on their marriage. I’m a divorce lawyer and divorce mediator (not a psychotherapist) and even I know that. Sex is a drug, and Governor Sanford is under its influence. If he wishes to work on his marriage, he will stop the affair, will work on ending all thoughts of the affair, and will take all steps necessary to reconnect with his wife and his marriage.

Struggling couples can find assistance in working out marital problems in many places. There are books, seminars, family advice, marital counseling, and pastoral counseling. Individual psychotherapy can also help. These are all very good tools in the marital toolbox. The Governor and his wife have had counseling, although we do not know the nature of this counseling. Perhaps the Sanfords need to try something else. Sometimes a couple has to try many things at different times to find out what works for them.

I have been practicing Marital Mediation (also known as Mediation to Stay Married) for some time now. This work came out of my experience as a mediator and lawyer. I am not a psychotherapist or couples’ counselor – I do not have the training of a mental health professional, although I respect the skills and background of those professionals. My approach, skills, experience, and training are different from that of a marital counselor or mental health professional. It leads me to deal with couples with marital problems in a different way.

A Marital Mediator is generally an experienced divorce mediator or divorce lawyer, who is expert in the financial impact of the dissolution of a marriage. Therefore, in Marital Mediation, the couple can address, discuss and get feedback from the mediator regarding the financial issues that often trouble a marriage.

When I discovered that people were seeking me out to talk about their marriage, I found that as a neutral mediator, I could interact with them and provide assistance. I could help the couple “normalize” their feelings and their views on their marriage by sharing my experiences in dealing with other marriages, some of which have ended in divorce. Although I sometimes write agreements for my Marital Mediation clients, often I do not. As a mediator, I do not represent either of them, but help both of them to find solutions to the things that are bothering them.

I have been finding out in the course of doing this work that Marital Mediation is surprisingly effective for struggling couples. Short-term and practical, Marital Mediation works for people who are unwilling or uncomfortable with marriage counselors or therapists. It focuses on coming up with practical solutions that help a couple move to the next phase of their marriage rather than delving deeply into root issues.

Marital Mediation is limited in scope and does not aim to solve all marital problems. Sometimes that unrealistic expectation dooms marital counseling or just plain “working on your marriage” to failure. Marital Mediation stays with the presenting issues – money, contributions to the marriage, children, infidelity.

As a Marital Mediator, I help troubled couples by being a neutral third party, by being present for them as they speak, by providing reactions to what they say, and by helping them identify issues and find solutions that work for them. A Marital Mediator can be a truth-sayer and can identify issues that the couple is not seeing. And because the background of the Marital Mediator is different than that of the mental health professional, the nature of the feedback given to the client is different.

The Marital Mediator can help the couple to overcome the view that their relationship is fatally damaged and lead them to the next step of continuing the marriage as a living, breathing entity. And often Marital Mediation can be a complement to some of the more traditional “tools” of maintaining and improving marriages. (Often the couple is seeing a couples’ counselor at the same time I am meeting with them as a Marital Mediator. Sometimes they will choose to embark on couples counseling later.)

For Marital Mediation to work (as in couples’ counseling), both parties to the marriage must truly wish to continue their marriage. They have to want to address some of their marital problems in order to go forward. This is a prerequisite. As difficult as it would have been for Governor Sanford, if he wanted to commit to his marriage, he should have said goodbye to his paramour in an email (or better yet, a snail-mail letter), rather than traveling to Argentina last month. Working on your marriage means going cold turkey on any extra-marital affairs.

We like to look up to our politicians and celebrities as leaders and teachers. When they rise to that level in their personal lives (as our new president Obama and his wife have done), they have tremendous power to model good behavior and influence an entire culture. I hope you, Governor Sanford and your wife, will rise to that level and build upon your marital struggles for your own good, and for the good of society.

So, Governor Sanford, I encourage you and your wife to give Marital Mediation a try. If you contact me, I will locate a marital mediator in your area for you to work with.

Governor Sanford – Give Marital Mediation a Try!

Copyright ©2009 Laurie Israel.

Happy Life, Happy Wife

by Laurie Israel, Esq.

Did you ever hear the expression “Happy Wife, Happy Life”? This overused adage seems to help some people (generally husbands) focus on their wife’s happiness in order to secure a peaceful, happy marriage. It seems quite manipulative. What about the man’s happiness? It’s interesting that the opposite “Happy Husband, Happy Life” is not used. Studies show that divorces are more often initiated by wives, so perhaps there tends to be an inequality in marital contentment, weighed towards the husbands’ side.

I originally thought the expression “Happy Wife, Happy Life” was of Oriental origin, because it seemed like the kind of thing you’d find in a fortune cookie. However, my Google search on the term brought up no Oriental sources.

The search for “Happy Wife, Happy Life” did in fact bring up a website www.happywife.com, the work of Rabbi Aryeh Pamensky, who offers many marriage improvement resources (including his own books, tapes, seminars, etc.) on the site. The term, however, does not seem to be derived from Rabbinic literature, and according to Pamensky, his courses and materials are used by people of difference faiths other than the Jewish, and also by secular couples.

The adage is confirmed by a 2009 German study of Australian divorces that notes where there is a disparity on satisfaction of the husband and the wife, divorce is much more likely, especially if the relative dissatisfaction is experienced by the wife.
economix.blogs.nytimes.com/2010/01/29/dont-become-happier-than-your-wife/

Then there’s www.yourhappywife.com. This site seeks to assist husbands in making their wives happy by helping them choose presents for their wives, which can be conveniently ordered on the website. Actually, the wares are quite attractive, including eco-soap and herbal teas. These might certainly pave the way for a clueless husband seeking to make his wife happy. In addition, the husband needing further help can email the site and pose his marital question or problem. “Within 24 hours or sooner”, the person(s) operating the site will respond with the best advice they can give. The site notes that all emails will be kept confidential and, in order to receive the best advice possible, that honesty is expected from the husband seeking advice. (I’d like to be a fly on that wall!)

As Rabbi Pamensky says on his site, “A happy wife is a happy life. It’s just that simple.”

But is it?

George Pransky, a psychologist in Washington State has another theory of marital dysfunction. His theory is that a person’s own mental/emotional state is the biggest indicator of whether the marriage will work well. If two people have a low mental or emotional state, Pransky says, marriage enrichment or marital therapy is like spraying for mildew in a damp basement. It never works as a long-term cure. In his marital counseling, Pransky tries to elevate the couple from the damp basement into an environment of good mental health. It is only then, Pransky says, that people can truly work on their marriage to make it thrive and survive. Prasky’s book, “The Relationship Handbook”, is a great resource for those couples who want to elevate their mental state and start working on their relationship. You can order a copy through www.amazon.com

So perhaps the more accurate stating of the adage is “Happy Life, Happy Wife.” Or even “Happy Life, Happy Husband.”

Copyright ©2010 Laurie Israel.

Taking the War Out of Our Words

by Laurie Israel, Esq.

Intrigued by the title of the workshop and feeling that I needed to work on my skills in managing effective communication, I came to the Toronto IACP conference early to take the all-day Pre-Forum workshop on “Powerful Non-Defensive Communication” (“PNDC”), presented by Sharon Strand Ellison. The workshop was packed with enthusiastic collaborative practitioners who, like me, were highly motivated to work on “Taking the War Our of Our Words”, as Ellison puts it in the title of her book.

Power Struggle as a Global Problem.
Ellison’s premise is that power struggle is the most pervasive and least-recognized addiction in the world. When there are conflicting views, we immediately have a negative reaction to the person who disagrees with us. We are likely to jump to the conclusion that the person is not intelligent, or intentionally mean, hurtful, destructive or rude. When a follow-up fact-finding question is asked in an open, honest, neutral and inviting manner, the other person becomes non-defensive and, as Ellison puts it, is “dis-armed”. The response to the powerful non-defensive (PND) question is often transformative and amazing. In her workshop, Ellison gives many compelling and powerful instances of Powerful Non-Defensive Communication (PNDC) exchanges.

For instance, if you ask a person “Is that how you peel potatoes?”, the person will become immediately defensive and upset, even though there is no potato in the person’s hands. The reason for this is that the question engages the person’s “limbic brain”, which is hard-wired for the defensive fight or flight response. The way in which a question is asked (for instance, the tone of voice, the choice of words) can instantly engage the “limbic brain”, completely skipping over the person’s “thinking brain”.

Ellison points out how strongly the engagement of the limbic brain impairs our work in divorce, particularly in having effective team/client meetings and productive interchanges between the divorcing couple. As Ellison says, if people can shut down and become defensive in a nanosecond, openness to listening to and understanding others and mutual connection and problem-solving work is impeded. Once the limbic alarm system is set off, it stays active for 20 minutes to an hour, further worsening the problem. This can very quickly destroy the effectiveness of a multi-party collaborative meeting with divorcing clients and the collaborative team. Ellison asks, “How can there be peace in the world, if people can get defensive in a nanosecond?”

The Powerful Non-Defensive Question
At the core of PNDC is the PND question. In Ellison’s workshop, we worked on listening to, and practicing the tone of voice needed to ask a question innocently (even “musingly”, as Ellison puts it), to make sure the other person’s limbic alarm system is not triggered. Ellison asks PND questions to elicit non-defensive responses, instead of arguing with a person or trying to convince the person to agree with her.

Although Ellison’s premise as to how to address power struggle and defensiveness may seem simple, implementing the highly transformative PNDC techniques is quite challenging to master. Putting into effect PNDC at the moment of a verbal interchange by formulating a PND question is difficult. Emotions get the better of us and our speech becomes reactive. With lots of practice, however, it can become part of our arsenal (excuse the word — perhaps toolbox would be better?) of social interchange skills for us to use in our collaborative practices and elsewhere in our daily lives.

For instance, you can ask a person to explain what he or she meant before you react to it. You can do this by asking a question by starting “What do you mean by …” Often you will be surprised at the new information you get, or how your assumptions as to what the other person meant were incorrect. Ellison teaches us to stay in a state of inquiry, and try not to fill information in with our own assumptions.

An effective method used in PNDC is asking a person directly about his/her intentions. When a person says something that seems negative or insulting, we tend to avoid asking the person directly. By asking, you may find out that the intention was not negative as you previously thought. Perhaps the intent was totally different, and the statement was not meant as an attack or criticism. Or, you might find just the opposite: the person did mean to attack and was being critical or negative. With either result, you have increased your understanding and the mutual exchange can be transformative when done in an open, honest, curious, non-defensive way.

Ellison teaches us to be aware of many types of communication problems. These include stating opinion as fact, identifying tones of voice and facial expressions that indicate covert messages (which can be decoded with proper PND questions), accepting your own assumptions without questioning them, and trying to convince someone of something (it’s almost never successful and always causes defensiveness).

PNDC and “Active Listening”
Ellison also had some interesting comments on the use of “active listening” in mediation and Collaborative Practice. This is the technique of repeating or rephrasing something said by the speaker, so that they know you are empathetic and they know that you have understood them. She believes that this technique often projects a false and shallow veneer of understanding, especially when you disagree with what is said, that greatly reduces its effectiveness. Ellison suggests that the language the active listener uses should not be merely a repetition or a paraphrase, but should go further in defining and understanding the various components of what the speaker said. Asking multiple active listening questions aimed at the various elements and specific words in the statement that is being actively listened to can be very powerful. When the statement is broken down like this, the speaker has a chance to respond and rearticulate what was said in its many aspects and in all its ramifications in the fullest manner possible. This gives a more accurate expression to the complexity of human life and subtlety of thought and emotion. It increases understanding and furthers mutual respect.

The Powerful Non-Defensive Statement

Another feature of PNDC is the use of the non-defensive statement. When we speak truthfully and openly, without fear and without hiding, our vulnerability can strengthen the statement and elicit a positive response. When we are guarded and hide information, our ability to resolve problems and work creatively with each other is impeded. As a result, when we are vulnerable and direct at the same time, we actually become more effective. When we state our own reactions to what another is saying in a neutral, sincere, honest way, defensiveness is eliminated, clarity can be achieved, and progress can follow. This aspect of PNDC may be difficult for attorney-Collaborative Practitioners to absorb, because in our legal training we learn that it is dangerous for our clients to put “everything on the table”.

Conclusion
Ellison’s teachings seem simple, but putting them into practice takes much attention and training. Learning how to formulate PND questions “on your feet” during interchanges requires a lot of work. I have been reading and re-reading Ellison’s book, and I am working to get better at PNDC skills in my law practice, my collaborative practice, and at home. I think incorporating PNDC into my life will be a very worthwhile undertaking.

Copyright ©2007 Laurie Israel.

25 Secrets to a Great Marriage

by Laurie Israel, Esq.

As a practicing divorce attorney and divorce mediator, I’ve met a number of couples that, if they had been given some good advice (and had remembered that advice) a few years or even months earlier, they would not be divorcing. The following advice is based on my observations as a divorce attorney, a mediator/conflict resolver, and as an experienced, mature married person.

1. Think before you speak. People in marriages tend to have very “hot” buttons causing frequent arguments. One reason for this is that the boundaries that exist at the workplace or with friends and relatives do not exist in a marriage. Much of marital bickering can be lessened or mitigated if you wait before you respond to something that has made you angry. If you think for even five seconds before you respond, the amount of marital bickering will be greatly reduced. It may be better to discuss the difficult issue on another day when the emotions are not so high. You can broach the topic (at that later time) by saying, “Dear, I have some unfinished business to discuss with you. May we discuss it now?”

2. Don’t give up. If you ask any married person, he or she will tell you that marriages wax and wane. There are good times, bad times, and even middle times. A marriage is viable if the good outweighs the bad, even by a little bit. Appreciate the good and try to let the bad roll off of you like water from a duck. The more you stick to it, the easier it will get and the more fondness and connection you will feel towards your spouse. You will also feel good about yourself, because you worked very hard to achieve something of value.

3. Give your marriage as much (if not more) focused attention than you give your hobbies. People spend huge amounts of time, money and effort on their off-work interests. But when a marriage is making them feel bad, everybody seems to “throw up their arms” and decide that it’s useless to try anymore. Actually, reading books on marriage, conflict resolution, and communication techniques will help your marriage. Getting your spouse to read them is even better, but not necessary, to being able to make huge positive changes in your marriage.

4. Treat your spouse better than you treat anyone else. Did you ever hear the expression “familiarity breeds contempt”? This seems to apply in marriages. As a result, the unfortunate truth is that people tend to treat their spouses worse than strangers. An example of this is the all-too-common behavior of treating the spouse (sometimes ever so subtly) with contempt. Who is this person you are married to now? And who was that wonderful, beautiful perfect person you married so many years ago? Believe it or not, it’s the same person. Remember those times and retrain yourself to view your spouse with the utmost respect and treat your spouse accordingly.

5. Have Separate Interests. Make sure you have some private space and give your spouse some too. Marriage entails a lot of togetherness, but just because you’re married, you don’t need to be joined at the hip. Make sure each of you has time away from the other with friends, family, or alone. Enjoy your separate interests. Having separate time and interests will help vitalize the marriage.

6. Foster and encourage your spouse’s dreams and goals. In a successful marriage, one spouse is happy for the other spouse’s successes. Good spouses foster the other in achieving their goals. Sometimes goals are scary and need to be carefully evaluated, such as a career change. Do the work together, so that each of you can become satisfied with your own life. Good spouses help each other make the most out of his or her life.

7. Find things you enjoy to do together. A marriage is a partnership. If you both have totally separate interests, you will eventually grow apart. Make time to pursue interests together. These leisure activities and interests will probably change over time. Find shared interests, pursuits, and enjoyment. But remember, you don’t need to share all interests.

8. Don’t think its greener on the other side. Most people who leave their marriages for someone else almost always find the same problems on the other side. Many realize where their first marriage went wrong, and how they (and their spouse) could have worked to fix it. With hindsight, many people regret not having worked things out in their first marriage. Remember, when you get divorced, you now have two problems – the problems in your marriage (that you did not solve) and the divorce.

9. Give each other a break. Don’t be overcritical of your spouse. Don’t carp all the time. The stark realization that comes after the wedding is that you are not the same person. But that’s not a bad thing. Try to appreciate your differences. Admittedly, this is hard to do, but try. It’s worth it.

10. Don’t sweat the little things. As in the world of work, it is important to have priorities. Spouses get angry when criticized over every little thing. Try to prioritize the important things that you want. Carefully pick your battles. Let the other stuff slide. Don’t be a nag and complain about every little thing. If you don’t like something hold your tongue. Try to roll with the punches.

11. If your spouse loves something (like his/her mother, or football), try find out why, and you’ll find you’ll love it too.Give your spouse credence and respect your spouse’s judgment, interests, affinities, and opinions. If your spouse is drawn to certain people or things, there is probably a good reason. Ask your spouse to explain. It might open up a new world to you.

12. Compliment your spouse every day, at least once. This leads towards a healthy relationship, and it is the right thing to do, because unless your spouse is a total slouch, he or she is doing many good things every day. Thank your spouse for all the wonderful things your spouse does for you and your family. Make sure your spouse knows that you appreciate his or her efforts.

13. Work hard with your spouse to create financial security. One of the beneficial effects of marriage is the creation of a strong economic joint venture. As your financial security builds up, it will be one of the things that allows you to feel good about each other and the world. It will also be a measure of the good work you’ve both done during your marriage. Financial security is a good thing and provides the foundation of a happy life.

14. Be your spouse’s partner. Keep each other informed as to activities you are engaged in, including your work days and what you do at home. The time you spend separately outside in the world every day is very significant. Always talk to each other at the end of the day about how your respective days have been. Respect and show awareness of and curiosity about your spouse’s separate interests.

15. Always assume the best of your spouse. People have misunderstandings and miscommunications. This is true even of people who know each other very well, such as spouses. If you spouse’s actions displease you, wait a bit, and then try to find out the motivation. You might well find that the motivation was meant to be constructive and not negative, and that you may have made the wrong interpretation or assumptions about what had been said or done.

16. Give your spouse a treat occasionally. Spouses have different things that make them feel good. If you know something that your spouse likes, give it to them sometimes even if you don’t care for it. It can be a small thing: a trip to the movies, a ride to a place your spouse likes to go, or maybe a favorite food bought from the grocery store. Be generous to your spouse, even if it is not in your nature.

17. Don’t fight with your spouse about the kids. Disagreements about children can be very corrosive to a marriage. Have your discussions off-line so that your children do not know you disagree. Get professional help if needed as to how to coordinate and respect your different views. Don’t let your disagreements about your children destroy your marriage.

18. Don’t complain about your spouse to your friends and family. One complaint at a low time in your marriage will resonate with the listener long after the problem or the short-lived spat was resolved. Your family and friends will always see your spouse in the same bad light in which you saw your spouse during this period of conflict. If you need to talk with someone about your marriage, choose an independent professional.

19. Be faithful and do not have an affair. A couple that is unattractive (physically or otherwise) is actually really lucky in a marriage because outside forces will not be as strong. However, if you or your spouse is unlucky enough to be attractive, don’t take the bait. It never works out. If you can’t resist having an affair, end your marriage first. When you actually think about it, you’ll probably find that you can’t end your marriage and things will have gotten better.

20. Find ways to enrich your lives. Learn and do new things together. In good marriages the spouses are always changing, growing, and developing new interests. Make sure that some of these changes and new interests are shared jointly, so that you can spend good time together developing as people.

21. Spend time together with mutual friends. Outside friendships pursued by the couple jointly are very good for marital health. The outside friends can be single people, or other couples. It does not matter. The important part is that you and your spouse share these friendships together.

22. Forgive each other. If you hold grudges, you’ll never get anywhere in marriage. Every spouse (even you!) makes mistakes and treats the other poorly at time. You must be able to forgive your spouse for the wrongs done to you and move on. Remember that the next time it may be you who needs to be forgiven. Marriage is very long. There are bound to be many bad things to happen between you. Do not hold onto these things. Forgive and move on.

23. Appreciate each other’s contributions to the marital venture. Marriages often fail because of perceived differences in the level of contribution of each party. Try to appreciate the other person’s contributions, whether financial or keeping the household together. Try not to impose your standards of how things should be accomplished on your spouse. Be appreciative of your spouse’s efforts at all times.

24. Be secure in the fact that marriage is forever. Marriage is a safe container for people to work out all their personal issues. Because it does not end (except by death), a person can have the security that any mistakes, personality flaws, misspoken words, can be forgiven. There is something about the alchemy of two people with a “forever” commitment that helps people find peace and satisfaction in life.

25. Don’t think that marriage is easy. One of the little-known but most important paradoxes about marriage is that it is an incubator for self-growth and self-awareness. This is a surprise to many, because marriage is supposed to be about the other person, or about the couple, or about “love”. Take advantage of your chance to perfect your awareness and ability to enjoy life and relate well to other people. A good marriage will have this effect, and redound to your ability to function well in the world and live at your highest practical and spiritual level. Marriage is not easy. But it’s worth it.

If you do all these things, and if, before you break up, you wait at least as long as you have been already married for roughs spots to work themselves out, you will have a long, happy marriage.

Laurie Israel
October, 2007

Yours, Mine, and Ours — Strengthening Marriages With Financial Agreements

by Laurie Israel, Esq.

The marriages of people who marry for a second time experience stresses, particularly when there are children from a previous marriage. Most of these problems are predictable. They are generally solvable with patience, good will, and persistence. Some stresses have to do with step-parenting relationships. Some have to do with unresolved issues with first spouses, or unresolved patterns that play out in the second marriage. These are all best addressed by the parties themselves, and, as needed, counsel from trusted friends, relatives, and professionals, such as trained therapists.

However, there is another very significant set of problems that can arise in second marriages that can best be addressed by attorneys using estate planning, contractual, and other tools. These are essentially financial issues summarized by the following questions:

To what extent shall the new spouses provide for each other during their marriage (and after their marriage due to death or divorce)? To what extent shall their separate pre-marital assets be protected and held for the benefit of their children from the previous marriage? To what extent shall future joint or separate property be held for each other vis-á-vis their children from the previous marriage?

These financial and estate planning issues can drive a wedge between the parties to the new marriage, causing unhappiness, and eventually divorce. This is not a good outcome for a solvable problem.

Prenuptial Agreements
Some parties choose to take care of these issues by entering into a Prenuptial Agreement (PNA) prior to the marriage. In the past, PNAs were considered legally unenforceable, as creating dissension and strife between the to-be-married couples right before the marriage. It is true that PNAs can be coercive and lead to unfair bargaining and inequitable agreements. Can you imagine a fiancé giving you a draft of a PNA a week prior to the marriage, after a large wedding has been planned and all invitations sent? This has actually happened to people. Most attorneys believe that there is a substantial uncertainty whether a PNA executed under these circumstances would be upheld by a court.

Generally, a PNA is held to be valid if entered into freely and voluntarily by the parties, if each party was vigorously represented by a lawyer as advocate, and if the PNA was fair when executed. It also requires that the terms of the PNA turn out to be fair at the time the parties divorce.

A PNA usually describes what happens to the parties’ joint and separate funds and assets during marriage, and may carve out a “marital enterprise” of joint marital economic venture. Perhaps all income earned by the parties after the marriage will be shared. Sometimes increases in retirement and other assets after the marriage are shared by the couple, sometimes they are saved for their respective children. If one party moves into the other party’s home as marital residence, there might be provisions regarding what happens to the house and a spouse’s occupancy after divorce or death.

PNAs also (generally) have provisions on how to divide property if there is a divorce. Sometimes there are disappearing or “sunset” provisions so that the longer one is married (e.g., 5, 10, 15, or 20 years), the more intertwined the couple’s financial resources are allowed to be. This comports with Massachusetts divorce law, and reflects real-life emotional and economic facts: the longer people are married to each other, the more committed they become. Their increase in connection and loyalty also generally spills over into a growing love and affection between each party and the children of his or her spouse.

Some PNAs purposely leave out some issues in the Agreement. This is to allow the couple to build an area of “marital venture” that is uncertain and almost entrepreneurial. These areas tend to positively feed a marriage. And if there is a divorce, absent agreement, these issues are left to the very intricately-developed Massachusetts equitable divorce law. This law (and the judges determining it) generally resolve complex problems with wise solutions.

Another area addressed by PNAs is what happens after death. Generally, parties want to protect each other, but also want to protect their children from the previous marriage. There is usually some allocation between the surviving spouse and the party’s own children, depending on the surviving spouse’s ability to take care of him/herself after the death.

QTIP Trusts
One of the techniques used to provide income to the surviving spouse (if he or she needs it) and still provide ultimate distributions to the children of the deceased spouse is the QTIP (pronounced “Q-tip”) Trust. These are special IRS-favored trusts that have special estate tax implications. They provide for flexibility in treating beneficiaries, can save assets for children of previous marriages, and generate tax savings and deferrals of estate tax in taxable estates.

Sometimes spouses decide to give their children from their previous marriages amounts outright (or in trust) that will fund the parents’ estate tax credit shelter, with the surviving spouse receiving the remainder tax-free at their spouse’s death under the “marital deduction.” There are a myriad of options to consider when planning for these situations. The execution and details of all these estate plans depend on the parties’ goals and the levels of assets.

Without a PNA, arrangements between surviving spouses and children of previous marriages are embedded in Massachusetts laws. There is a provision that comes into play if a person dies without a will (i.e., if a person dies “intestate”). This intestacy law (which also applies to first marriages) is based on very old common law, where it was quite usual (due to early death in childbirth or disease) for a spouse to be remarried at the time of death and to have children from his or her first marriage. It is also heavily influenced by European cultural values, where even today, in a first marriage, there tends to be a desire to leave only part of the estate to the surviving spouse, and the rest directly to the children of that marriage.

Property Issues in Estate Planning
The intestacy law says that if you die married with children, half your estate goes to your surviving spouse, and half goes to your children. This rule, however, does not apply to joint tenancy and tenancy-by-the-entirety property which goes at death directly to the surviving spouse as a matter of law. It also does not apply to retirement benefits and life insurance, which go directly to the chosen recipient by beneficiary designation. However, intestacy law does affect people with “probate” assets, i.e., assets titled in their own name who did not execute a last will and testament.

I have seen situations where someone with substantial family assets in his or her own name dies in an unexpected early death (without a will), leaving a spouse and young children. Unfortunately, in that case, the surviving spouse only gets half the probate property, and the children get the rest. This scenario involves ongoing probate court supervision for the assets going to the minor children, and detailed and cumbersome probate accounts and filings. Moreover, the children get their share outright at the age of 18 years. This is not a good result.

What if a spouse gives half of his or her property to the surviving spouse and half to his or her children in a will? This may be an excellent solution with grown children. But if a spouse leaves the entire estate to the children, under Massachusetts law, the surviving spouse may “elect” or “take” against the will. As a result, the surviving spouse would receive a “life estate” in one-third of the probate assets. This life estate would be funded by putting one-third of the property of the deceased spouse in a trust and giving the surviving spouse the income from the investments held in trust during his or her life. No principal distributions are permitted to the spouse, or for that matter, to the children, while this life estate is in effect.

A Solution To a Difficult Question
Many people ask me the following question: “If I give all my assets to my spouse upon death, how do you prevent my spouse from giving these assets to her or his new spouse instead of to our joint children (or my children from my previous marriage)”? Unfortunately, this is a real question with a difficult solution.

Some people with larger estates place their property in a QTIP trust with limitations of what can be given to the surviving spouse. Generally, the children would be remainder-persons, taking what is left over. In a first marriage (and with a nontaxable estate), I generally recommend that the surviving spouse should be trusted to “do well” by the children of the marriage, even if it means the surviving spouse may share property with a future spouse, and even that spouse’s children. We would want our spouse to be in a good situation after our death. Giving the surviving spouse latitude to handle our jointly accumulated funds fosters the present marriage, because our spouse knows that she or he is trusted.

An Emerging Field
It is not at all uncommon for people in second marriages to run into marital problems resulting from decisions regarding income, assets, and questions regarding ultimate distributions of assets between their spouse and children of the previous marriages. Many people realize the problems and uncertainties after the marriage, without having entered into a PNA prior to the marriage. Is there anything that can be done in such a situation?

The answer is yes. There is an emerging area of law which can address this problem — Postnuptial Agreements. As described by its name, Postnuptial Agreements are agreements between spouses involving financial matters entered into after the marriage. Parties can come to terms on the sharing of current income, and on ultimate distributions of assets in a Postnuptial Agreement.

It was thought that Postnuptial Agreements would be unenforceable as a matter of law for two reasons. There is the doctrine embedded in legal history that spouses were a single person, and therefore could not contract against each other. Also, it was thought that post-nuptial negotiations are against public policy because they had the capability of being coercive and could cause harm to the marriage. However, now (although not without doubt) many practitioners believe that, under the right circumstances, these agreements can be legally binding and valid.

A Postnuptial Agreement, however, is fraught with the potential to hurt rather than help a marriage, even more so, perhaps, than a Prenuptial Agreement. As Postnuptial Agreements deal with financial, divorce, and estate planning matters, an attorney would need to be involved. Due to the delicacy of the negotiations in an ongoing marriage, the first step would probably be for both parties to engage a lawyer/mediator to begin the discussions with them jointly. But more on Postnuptial Agreements in a future column.

Copyright ©2006 Laurie Israel.

Why I Perform Weddings

by Laurie Israel, Esq.

I have always cried at weddings. When I ponder as to why, I think that it is because I am …..genuinely concerned for the about-to-be newlyweds, and especially so for the young ones. As a 61-year-old person somewhat experienced in life, I fear for them. Sure, the couple is in love. They innocently face their new life together with hope and promise, but do they really know what is in store for them?

As a divorce lawyer and mediator, and from my own life experiences and those of my loved ones, I know about the particular stresses and strains present in long-term (and short-term) marriages. Along with the joy, I have seen the suffering and ordeals that couples go through during the course of everyday life together. That a marriage ebbs and flows, happy and unhappy at times, is probably something the couple saying their vows cannot comprehend. In addition, when people marry, they are generally clueless as to the legal obligations they would face should they divorce. No one realizes that if one spouse becomes financially dependent on the other, the supporting spouse may remain responsible for the dependent spouse even after the divorce – possibly even until one of them dies. Alimony often comes as a shock to a divorcing payor spouse. People are also surprised when they learn that they have to share their retirement plans and other assets with their spouse upon divorce.

This is why I cry at weddings. I cry because the couple literally does not know what they are getting into. And no one would dare tell them on this happy day, nor would they believe it if someone did tell them.

So why do I perform weddings? Because of my desire to give a married couple all I can give in the form of encouragement and education, so they will have a better chance at having a happy and satisfying marriage.

In 2000, I submitted my papers with the Governor’s Council to become a Justice of the Peace in the town in which I reside. Justice of the Peace is an office that has historical ties to the person appointed to keep the “King’s Peace” by use of summary justice (trials, punishment) in remote areas. In our times, and in Massachusetts, a Justice of the Peace mainly performs marriages. Justice of the Peace is an appointed position, much like a judge or a notary public. The Governor’s Council chooses from the applicants for these positions, and makes recommendations subject to the Governor’s approval.

Each town has a fixed allotment of Justices of the Peace based on its population. My town has 18, several of which are filled by City Clerks. There is intense competition for the one or two vacant seats that arise every so often.

I zealously pursued the appointment. I secured the signatures of five prominent people in my town. I did everything I could think of, including providing letters of reference.

Much to my surprise, on my second application, I was appointed by the Governor’s Council as Justice of the Peace in November, 2005, and I have been performing marriages in Massachusetts ever since.

Why would a divorce lawyer/mediator want to perform weddings? It’s certainly not for the money. I receive $75 as a statutory rate if I perform the ceremony in the town in which I reside, and $125 elsewhere in Massachusetts. I usually give a gift of a book on relationships when I perform a ceremony, thereby reducing my revenues by $15. Often I bring some music to the wedding, and work for hours preparing and revising the wedding ceremony, which I customize for each wedding after speaking with the engaged couple. I find poems which I paraphrase shamelessly (all the dead white men are dead anyway). It is definitely not a profit-making venture.

I fight against my natural shyness about performing in front of people, and try not to mumble (which I have a tendency to do). The weddings are usually on Saturdays and Sundays, so I give up part of my much-needed weekend – and I even have to get dressed up, which I do not like to do.

I have honed my wedding ceremony so that it gives honor and support to the current feelings of love and excitement present in the to-be-married couple. But I also include in my ceremony the important things they must do with and for each other in order for their marriage to be successful for the long term.

I give the to-be-married couple the choice of whether or not to include “God” language. If “God” language is included, I talk about marriage as a “blessed state,” but how their actions here in this world and with each other are so important to nourish the marriage (a Jewish theological concept that I like).

I talk about how a marriage grows with time, and about the good and the bad times a marriage will have. I tell them that in their lives together there will be many setbacks and disappointments, and that confronting these setbacks and disappointments together is what will make their marriage stronger and more long-lasting.

I try to find out who in their family has had a long-term, happy marriage. Sometimes in these days it might only be one set of grandparents. I hold out these people as role models for the young couple, because I know that the more divorce there is in their immediate families, the more likely a couple is to divorce. I ask them to always envision their marriage as long-term and permanent – “to the end of your lives, whenever that may come,” as I say in the ceremony.

I talk about the capacity to forgive, and how that is so important in a marriage, and I talk about the random and not-so-random acts of kindness to each other that will strongly ease a marriage into pleasantness as nothing else can.

During the ceremony, I spend a lot of time talking about the ultimate commitment they are making to each other, and why that commitment is so important to their marriage. I have them take the term “forsake all others” very seriously. I don’t beat them directly on the head by telling them not to have affairs while they are married. But when we get to the “forsake all others” part in the ceremony, I look them in the eyes kindly and sagely, but very intently. And after all the other guidance that I have already given them in the ceremony, they know these are not just words, but something very important.

By the time I get to the part about “in good times and bad times,” I have them on my wavelength, and I know they are now taking me very seriously.

Toward the end of the ceremony (now that they’ve agreed to all these things), I sign their marriage license, and present a book on relationships to them as a wedding gift. The book I like to give is George Pransky’s The Relationship Handbook, which describes a positive, clear, and workable approach to addressing marital problems as they arise. I recommend it to them for spousal reading, chapter by chapter, in bed before going to sleep at times of trouble.

At the end of the ceremony, I give them a benediction, and present a copy of their wedding ceremony. I have it ready and printed on beautiful, watermarked, buff-colored stationery and sign it with a fountain pen and ink. They can read it later when they want to revisit the commitments they made and the love they felt on the day of their marriage. I hope that by all these ministrations I have made their ceremony an important event, and that they will remember what they learned on their wedding day and be more capable of carrying out their marriage in a way that gives them a good and fruitful life together.

Copyright ©2007 Laurie Israel.

The Throw Away Marriage

by Laurie Israel, Esq.

I always cry at weddings. It’s not because I think the wedding is so beautiful or the newlyweds are so adorable. It’s because I know (and they don’t) how difficult marriage will be for them. You will see tears on the faces of everyone over a certain age at a wedding, especially those that are or have been married. The truth about marriage is that marriage is difficult for everyone. But the higher truth is that, even though marriage is difficult, it is worth it.

Many of the people that walk into my divorce law firm asking for my services are men or women, recently married, in their 20s or early 30s. They have completed the honeymoon period of 18 months to 2 years, and find that marriage is not at all what they expected it to be. They were surprised and deeply shocked at how quickly the love (and lust) at the beginning turned into rage and disgust.

They did not go to the next stage of their marriage — the stage of communication, cooperation, and learning about the real person with whom they fell in love. There is probably not much that can be done at that point, when the feelings have turned 180 degrees around and the participants of the marriage (or one of them) has a fixed mind-set that the marriage must end.

But it is actually at that point — when a couple experiences the first signs of disagreement, faulty communications, mistrust, repulsion and lack of respect — when the real work of “marriage” can begin. It’s interesting and valuable work. A couple will eventually find that the work on a marriage not only sustains the marriage and helps it deepen, but also promotes personal growth. Marriage and the work it involves is always worth it. And it can even be fun!

A long marriage invariably has its ups and downs, but over time a married couple builds a history of life together and gathers shared memories that strengthen their marriage. As important, each spouse provides one another with the moral and economic support to enhance their mutual and separate lives. A good marriage is a living process that breeds contentment. It is something precious and attainable by many more people than the current fifty percent divorce rate would indicate.

So what can you do when the first thunderclouds hit?

Well, the most obvious thing (and the thing most people don’t think about!) is to do something about it. I am always totally floored by how people spend more time with their hobbies or watching TV than improving their skills in marriage. Even a little time spent learning how to have a better marriage will be worth it. And yes — marriage is a totally, learnable skill.

Couples can try marital therapists, and if they do not progress with one therapist, try another. There are also many books, CDs, courses and internet material available on how to improve marriage. A couple can look at these materials, choose some, and try to apply them. Experimenting with these techniques on each other can be fun! You can also see a mediator, not for divorce, but to try to help you with conflict resolution techniques that will help your marriage. I call this “Mediation to Stay Married”.

It’s best if both spouses work together on this, but if you have a resistant spouse, then read the books (or go to the therapist) yourself, and practice the techniques and insights on your spouse. (When you do this, your spouse might say, with a chuckle, “Are you practicing on me?”) Try anything you can to break bad patterns at the beginning of the marriage when they arise. Otherwise these bad habits can become entrenched and can doom the marriage to unhappiness and discontent.

I find two books especially helpful for married couples. They are The Relationship Handbook by George Pransky, and Taking the War Out of Our Words by Sharon Strand Ellison. I re-read these books often and give them to my clients.

Pransky’s book is short, well organized, and can be read (by the two of you) chapter by chapter. An example is the chapter entitled “It’s Never Too Late to Get A Fresh Start”. Doesn’t that sound good? After reading it, you (and your spouse) will believe it and you will be able to begin anew and overcome discouragement and the “tapes” in your head that says the marriage is no good.

Sharon Strand Ellison’s book requires close reading and lots of practice, but it’s worth it. She posits that “power struggle” is at the root of all imbalances in relationships, and has devised a program called “Powerful Non-Defensive Communication”. It is based on eliminating communication problems by learning to ask questions that won’t lead to a defensive response. A great deal of surprising material is uncovered by asking questions in this way, and great progress can be made toward eliminating arguments and improving mutual understanding of each other.

Both the Pransky and the Ellison books can be purchased on the internet. Buy the books, read them, study them, apply them, and experiment with them on your spouse. These techniques really work and may lead you toward a happy marriage. And, you will find an extra benefit. Learning how to improve the dynamics of your marriage will improve your functioning with others everywhere — at your job, with your family and with your friends.

Copyright ©2008 Laurie Israel.

The Great Banana Wars – Deconstructing a Marital Dispute

by Laurie Israel, Esq.

Marital disputes are an inevitable fact of life. It is the way that couples deal with these disputes that makes the difference between a viable marriage and one that is too unpleasant to bear. Usually, people are quite unreflective as to what is at the root of the arguments. People get angry, the speech gets “hot”, and the couple goes down the road of hurtful communication with no resolution in sight.

Fortunately, for many couples, there is a safety valve, which has been called the “Positive Sentiment Override” (“PSO”) by marriage expert John Gottman. What this means, is that no matter how hard you’re fighting and no matter what angry words have been uttered, if the positive interactions outweigh the negative (and if the couple basically respects one another and has a high level of fondness and appreciation for the other spouse), they tend to ignore the small disputes, even if quite nasty and unproductive. In other words, if there is enough positive sentiment in the relationship, the positive sentiment will overcome negative interchanges. However, in some relationships, the negative interchanges far exceed the positive ones. Those are relationships which may be doomed to divorce, unless the couple works on their communication and dispute resolution skills.

It is important for all couples to address their disputes and to see if they can understand where the fighting is coming from. By deconstructing their marital disputes (an exercise very similar to literary analysis), the couple can identify the deeper causes of their quarrels. Knowledge is power; knowing the roots of their differences in attitude and why they push each other’s buttons so strongly may lead a couple to mutual understanding and more peaceful interchanges.

Let me give you an example:

As a marital mediator, I have asked couples to keep a pad and take notes as to the arguments they have had between sessions. These notes, when “mined”, can become fruitful areas of discussion and lead to furthering mutual understanding. It’s best to take the notes out of eyeshot of the partner. However, it is especially good to write down the notes close to the time the dispute ends.

For instance, a couple may have a marital dispute involving a banana. Actually, it might be a dispute about a half of a banana. The dispute would present as follows:

One of the spouses may ask if he could eat one half of a banana. The other spouse might become extremely angry and may vocally express intense anger. When asked by the banana-eating spouse why she was so upset, she might say that did not want to have to take care of the leftover half of a banana. Does this sound like an important argument? Not really, and yet this could result in a ferocious verbal brawl between the spouses, eliciting great emotion and anger, resulting in some very “hot” words. When parsing this dispute, deep-seated issues can be uncovered, and deconstruction of the “Great [Half-] Banana War” may turn out to be especially fruitful for the couple. (Sorry for the pun!)

How does one deconstruct this argument? First, one must look at the initial flashpoint of the argument: what will happen to the uneaten half of the banana? We’ll begin with the spouse who initially voiced distress. When asked why she was upset, the caretaker spouse would say that she felt the eater spouse would not take care of the uneaten half, and that she would have to do so. When asked what she meant by “take care of”, the spouse would reply that she would have to take responsibility for storing the uneaten fruit, tracking of how long it remained uneaten and eventually disposing of it in some way. She felt irked at the perceived added responsibility and the belief her spouse neither recognized the responsibility nor appreciated her for taking it.

It is only with this answer that her deeper concerns begin to come to light. There are several issues at play here, those of contribution in the marriage, gender, family of origin and fairness. If asked to analyze her feelings about the banana incident, the caretaker spouse might say that she feels all the work around the house is up to her, even when her spouse is off work. She might say that she feels her efforts are ignored and that her contributions are not appreciated — reminding her of how her mother worked around the house (not so happily) during her childhood. She may also voice that the eating spouse’s mother did everything for him around the house when he was growing up and continues to do so, and so he has become used to being served at home.

The deconstruction would not be complete without the eating spouse’s perspective. Again, analysis reveals separate, but also key, deep-rooted issues. Based on his spouse’s reaction, he would say that he felt like he was being pushed into eating the entire banana, when he only wanted to eat a half. (This raises issues of control.)

Being somewhat overweight, the eater spouse would say that he did not want eat the whole banana and did not want to function as a garbage disposal. (This raised feelings that he was being unprotected by his spouse, and therefore not loved. Did his spouse want to do him physical harm?) He also was very concerned about throwing away the uneaten half. He would be wasting food in a world in which people were hungry. (Deep-seated political and social values are relevant to him in this dispute.) He had been taught to clean his plate at meals as a child because of “all the starving children in China”. (He is responding to family values and family-of-origin training) And as the primary wage-earner in the relationship, he also thinks that by wasting a half banana, the other spouse is wasting the money he earns with much effort. (This raises financial issues that are at the root of many marital disputes, and also contribution in the marriage and gender issues.)

What does the deconstruction of this argument show? It shows how seemingly unimportant disagreements are rooted in important martial issues. As detailed above, this little argument over one half of a banana has revealed virtually all of the basic issues over which spouses struggle in their effort to achieve a harmonious marriage. If thoughtfully analyzed, the most innocuous and ridiculous-seeming arguments can provide fodder for mutual discussion of significant areas of concern for each spouse.

Summarized, these mega-issues are contribution to the marital enterprise, concern for the other spouse, gender roles and financial issues. Further analysis will show how the family of origin has shaped each spouse and how a spouse’s personal belief system, political and social views and values, form the basis of his/her thoughts and behaviors that color almost every interpersonal interaction in a marriage. Heavy food for thought, even if only about a banana. (Well, actually, only about half of banana.)

So, the next time you enter into the Great Banana Wars with your spouse, write some notes when you have cooled down, and set aside some quality time to discuss the root issues with your spouse. When you peel away the surface of a marital dispute, such as this one, you will mine a great wealth of information that can help you and your spouse improve mutual understanding, and therefore lead to a better marriage.

Copyright ©2007 Laurie Israel.

Ten Secrets of Reviewing Counsel for Clients in Mediation

Being a reviewing lawyer for a party in a mediation requires many skills. Surprisingly, only one of them is a knowledge of the law. This article summarizes my reflections on the skills involved in reviewing mediated agreements, and how there are many elements (some of them non-legal) that come together in best addressing a mediated agreement and monitoring the mediation process on behalf of a client.

1. Your Client is Your Partner.
Virtually all mediation clients have contributed much to the solving of their own problems. They are almost always in a better position to know all the facts and circumstances of their situation, and have always given much thought to it. Opening up to your client’s expertise in his or her own problem can be a very effective way for you to begin to be able to provide helpful input to a mediation agreement and a mediation process.

Your clients have a great deal of intelligence and good sense, no matter what walk of life they come from. All people are smart and have a great deal of inherent wisdom. Your clients seek your advice because of your special skills in problem-solving and your knowledge of the law. By partnering with your client, you can both do a better job, because there are two of you working on the problem.

2. Find the Way of Least Conflict.
What lawyers do most of the time (as do mediators) is resolve conflict. At the heart of the legal profession is conflict, and lawyers are trained conflict resolvers. A client that has come to you from mediation for you to review an agreement or provide input into the process has chosen alternative conflict resolution rather than a more confrontational way to resolve their problems.

Through anecdotal experience (some of it my own), I have come to the conclusion that most lawyers actually dislike conflict. A lawyer working with a mediation client can make his or her aversion to conflict into a strong power to assist in resolution. When dealing with the other reviewing attorney, if you have the right attitude, it is actually often possible to find a solution that can satisfy both sides. When you can satisfy both sides, then the solution to the problem or dispute is not a zero-sum game where if one party wins, the other party loses.

Always assume there is a solution that will be mutually agreeable – you just have to find it! Build bridges between the other reviewing attorney. Find out his/her concerns about aspects of the negotiated agreement or mediation process. Use your skills as a mediator (or collaborative lawyer) to disarm a counterpart counsel who has not been trained in mediation or collaborative law. Lawyers do well in dealing with mediation clients and other parties (including opposing counsel) when they find the most effortless and peaceful path to solutions of problems and disputes. Practicing law is like walking on water, sometimes.

3. Ask Open-Ended Questions.
When you are dealing with a mediation client, you will need to catch up and learn the facts of the client’s situation. Skillful interviewing is the key to finding out the facts that are crucial to helping your client solve the client’s problems. Try to understand what your clients mean ? this will not always be what they are actually saying. Read between the lines. Listen very carefully. Follow up on inferences. If you cut short lines of inquiry you can miss a vital piece of information.

At the end of an initial meeting with a client, I always ask the question, “Is there anything else that you have not yet told me that is relevant to your situation?” Generally, if you let 10 or 15 seconds go by, the client will think of something. And it may be a piece of information that is very crucial and valuable to helping the client. Do short-circuit a client by always asking directed questions. By eliciting your client’s answers, and not imposing yours or foreclosing your client’s by the way in which you question him or her, you will always find out important things and facts that that you would have missed. This is crucial to your being able to effectively and completely serve your client as the reviewing attorney in a mediation.

4. Give Good Advice About Compromising.
Often a mediation client asks to have a consult with you because of an impasse in the mediation process. Effective lawyering of clients in mediation depends on educating clients into reasonable positions and letting them know that compromising is sometimes (perhaps often) winning. Having said this, it is nonetheless very important to let your client tell his or her “story.” Bear witness to what your client is saying. Sometimes listening to what hurt your client is a very important part of the professional relationship and begins (or furthers) the healing process for your client.

By telling your client that his or her position is somewhat unreasonable will give the mediation client a reality test and the client can go back to the mediation better informed.

Mold your mediation client toward the idea of compromise (if compromise is possible and reasonable) early in the process (after they have had a chance to tell their story). Do it gradually by educating your client on the downside of taking an inflexible position. If you think your client is wrong about the possible results of a situation, tell your client, and explain why you think so. If you think there is some truth in what the other party (or the other party’s counsel) is saying, acknowledge that to your client. If you do this, you have moved the process forward by being truthful and (usually) you will have gained credibility with your client, and also with the other side.

5. Dig Your Heels in When You Have to – But Politely.
Always seek to maintain good relations with opposing reviewing counsel in a mediation, even on little things. By building trust, rapport, and cordiality with the other attorney, the process of solving problems and overcoming impasse will be easier and much more likely. It is true in law as in life that (as my mother wisely said), “You catch more bees with honey.” This is an absolute truth in the legal profession. It happens all the time. With this type of groundwork, when you need to dig your heels in for your client, do it respectfully, politely, and unemotionally. Because you have not “cried wolf” previously about unessential things, you will be listened to by the other side about important things, and you will be taken seriously.

6. Don’t Withhold Advice Just Because You’re Not Sure.
Sometimes the law is not clear, or the results of actions taken may not be clear, but give a client in mediation all the possible scenarios so that the client can evaluate a path he or she chooses to embark upon. Lawyers must give the clients the decision as to how to proceed. However, when asked, “What would you do if you were in my position?” be honest. Lawyers are trained to spin paranoiac fantasies to present to their clients. But don’t get carried away, otherwise nothing will happen and nothing will get resolved. Try to give your client some probabilities of any of these fantasies actually happening. This will allow your client to make his or her own evaluation of the risk and decision as to how to proceed.

7. Don’t Jump to Solutions.
Creative pondering is a good thing. Solutions come from many places, even in your sleep or in the car when you are commuting. The nice thing for your client about pondering during off-hours is that it is unbillable time. It is often the most creative time you spend on a client’s matter. Believe it or not, lawyers worry about their clients’ situations and want to make it better. That’s why we became lawyers.

Not jumping to solutions is a very important part of our job. If you jump to a conclusion too early, you may have foreclosed many better and more creative solutions that take a little more time or thinking to get to. Let time do its work.

8. Don’t Get Personal.
The relationship of attorney and client is very akin to the relationship between therapist and client. Perhaps that’s why we are called counselors. As in a psychotherapeutic relationship, it is almost always a mistake to bring details from your own life or life experiences directly into the discussion between you and your client. Your client has come to your office to deal with his or her own issues, not yours. Anytime you step away from your client’s issues and into your own life (even if you think your personal experiences are relevant to your client’s problem) you have broken the attorney/client counseling relationship. You can never fully recapture the trust of your client once you have done this. Keep focused on the client’s problems and don’t bring yourself into the room.

9. Make Sure Your Client Sees Your Value.
People generally don’t like to pay attorney’s fees. Often, one of the reasons the client is in mediation is to achieve the goal of saving legal fees. It is very important that your clients in mediation feel that they have received value for what they have paid you. Don’t send a bill until you have accomplished something of value. Own up to your mistakes and rectify them on your own time. Make sure that your clients’ money is being used wisely and in the most cost-efficient way. In your interactions and communications with your clients, detail the progress made so they understand what you are doing for them. Make sure the client is satisfied with his or her interaction with you.

10. Make an Independent Assessment of the Facts and the Law.
It is important to get a clear sense of the facts of your client’s situation. A good place to start is what your client tells you. It is also important to obtain facts independently, and also through opposing counsel, even though some of these facts may not be what you want to hear. The more fact-finding you do (even if some of the facts conflict), the more able you will be to work out a solution.

Ascertaining what the law is can be complex. Always go to the source (case, statute, or regulation) and make your own independent assessment. If you rely on secondary documents, you may be thrown off-track. Remember that two things are true: the law is a seamless web (i.e., everything is intuitively and logically based), and the law is sometimes counter-intuitive (you cannot always rely on logic to get to the result).

Copyright ©2007 Laurie Israel.

“Monkey Mind” and Infidelity

by Laurie Israel, Esq.
There is a time in everyone’s marriage when one spouse or the other is attracted to another person. After all, although we’re married, our interest in other humans is never completely shut off. Therefore, in the course of a marriage, it should not be at all surprising that we might find someone else, other than our spouse, attractive. One of the challenges of marriage is identifying these attractions and addressing them in a constructive way.

There is a Buddhist concept called “monkey mind”. This is the well-known phenomenon of our mind moving from one thing to another, like a monkey going from tree to tree, grabbing a banana, taking a bite, dropping it, and moving to the next tree. In meditation practice, we sit passively while we watch our “monkey mind” going from one thought to another. Even when not attempting to meditate, if when we stop to notice, we see that our minds are constantly going from one thing to the next. We live in a multi-tasking world and operate in a multi-tasking society. No wonder we are so actively engaged in monkey mind madness.

Even in our most primary affectionate relationships, we are unable to concentrate on the person we are with and are filled with other thoughts. You can find a variety of thoughts rushing through the mind, including criticisms, aversion, and distrust. Our thoughts build assumptions that are often wrong when tested. Our communications are thoughtless, overactive, and needlessly confrontational.

People in a marriage are often highly surprised by a strong attraction to a new person. The attraction starts building. Thoughts of it often become obsessive. The monkey-mind begins to work overtime. The object of the desire becomes perfect; the spouse’s imperfections and flaws become brutally apparent. Our “monkey mind” exclaims into our ear, “If only I could be with the new beloved everything would be all right.” The mind runs and runs on thoughts and fantasies of life with the (new) beloved. It is a construction entirely tailored out of the cloth of the mind. Beware — it is not real. It is a chimera built out of smoke and mirrors. The new beloved becomes the old beloved before long. The chase is over, and you’ve just traded one spouse for another.

However, like thousands of fools throughout the ages before us, we fall under the sway of the manufactured desire. We are feeding our own monkeys, and the monkey-mind thoughts grow and take on a life of their own. We are powerless before them.

If the person is lucky, the object of his or her desire does not reciprocate that interest. Eventually, the fires of the monkey-mind ardor die out and the person will find the way back to his or her spouse. After the monkey-mind has let go, a new look at the spouse will reveal what brought you together in the first place. You love your spouse’s aging skin, his or her devotion to work and to you. You adore your spouse’s lovely sense of humor and kind eyes. How did you ever fall prey to the monkey-mind?

How to deal with a strong attraction to a person not one’s spouse? There are several Buddhist teachings that provide help coping with the psychic mania and falsehood of monkey-mind, or in other monkey terminology, how to get the monkey off your back.

One is to ignore the monkey and concentrate on something else. This is not easily done because the fantasy pleasures of consummating with one’s fantasy lover are so strong. Ignoring very strong feelings is nearly impossible.

But if you look at these feelings, and think about what they really are — feelings, thoughts — constructs of the mind, and not manifestations of reality — you may be able to disengage the fantasy. Could it be that the attraction to the other person is a way of getting away from an uncomfortable period with one’s spouse, a way of pleasure-seeking when the home fires are not burning so brightly? Perhaps focusing on the problem at home will be a productive way to put one’s attention back on the primary actual and existing relationship. Perhaps one can find a new focus, a new learning, a new technique to apply at home.

Beware of the monkey. The monkey leads us down the path of dreamworld unreality, and consummation of desires. Desires always lead to new desires. They spring up like mushrooms.

The monkey leads us down the path of planning and scheming to make the desire a reality and to have the affair. The monkey will make us say “yes” when we know we should say “no”. Know that the monkey is never satisfied, and will move on once it has a bite of the banana. To state it directly and bluntly, the new affair will lose its allure as soon as it is consummated. The spouse will not forgive. The spouse will not trust again. There is no way of returning. You are on a road to nowhere.

Let your thoughts of infidelity unfurl. Do not be afraid. Identify what your thoughts are doing. Voice them to yourself. Observe them. Note that our western lifestyle promotes the monkey-mind encouraging us never to be satisfied with what we already have, to continually strive for “more” and “better”. Note how the monkey-mind weaves a web of thoughts and emotions that entrap. Be aware that thoughts have a life of their own. Know that thoughts (and nothing else) have a potential to destroy a perfectly good marriage.

Whenever the monkey-mind of infidelity reappears, remember that the monkey-mind represents illusion because what is contemplated by the monkey mind does not exist, except in the mind. Know that the monkey-mind is at its strongest sway (and we are at our weakest) when chattering of physical desire. Beware of the half-eaten bananas strewn upon the floor of the jungle. Beware of the litter of infidelity.

Practice watchful vigilance over your monkey-mind. Quietly watch it. Analyze your thoughts and feelings when under its sway Each time you do that, you will stop the monkey-mind in its tracks. You have captured the monkey by observing what the monkey-mind does. If you observe and do not act impulsively, you can work through the thoughts and desires in a safe place. When you do this, you are ready to return to your marriage. You will be surprised at all the good you see in the marriage and the spouse that the monkey-mind was persuading you to throw away.

Copyright ©2007 Laurie Israel.