Trick #3

“The other side wants . . .!”  In prior blogs we focused on the fact that while people are rational, they can be tricked and on two of the tricks in the traditional family law legal system: legal outcomes are goals; and divorce is a zero sum game.  The third trick is convincing people that they have a dispute with the other spouse.  The assumption that people going through a divorce have a legal dispute is so pervasive and so deeply embedded in the system that it is hardly noticed.  Why can an attorney not represent both parties in a divorce? Why do we refer to the other attorney as “opposing counsel?”  Why do we call mediation an “alternative dispute resolution” procedure? Why do attorneys set up a simultaneous choice situation by asking parties separately what their positions are on all of the legal issues?  Doing so inevitably establishes the dispute that we all assume is there anyway.  Why do we call agreements “settlement” and the process of getting there “negotiating” and “bargaining?”

When people are convinced that they are in a dispute, they align with their warrior, their attorney, and prepare to do battle in a competitive atmosphere.  They tap into that psychological need to prevail.  The “other side” becomes the enemy, the obstacle to getting what each spouse wants.  Spouses vilify one another the way all humans vilify rivals.  Before long, spouses who used to and perhaps still do love one another cannot stand being in the same room and act like they have never met.  The most rational strategy in such a situation is mud-slinging.  As they inevitably experience the losses involved in a divorce, bitter resentment settles in, sometimes for life.

In amicable divorces, the parties do not fall for the tricks.  They realize that they are not in a dispute but rather in a transition from married life to separated life.  Rather than bitter resentment, they experience and process the sadness.  They view their attorneys as guides rather than as warriors.  They still see the other spouse as a human being, not a rival, and recognize the mixed feelings they have for one another.  We look at amicable divorcing spouses as the rational ones, but they are the irrational ones because they are not playing the divorce game the way it is set up – as a dispute.