Skills Needed for an Amicable Divorce: Do We (Really??) Live In Two Different Worlds?

This article is one of a series that focus on the nut we would all like to crack: divorce conflict.  Books on divorce, Collaborative Divorce; Cooperative Divorce; and other models in family law have been attempts to move the needle from conflict in divorce to amicable divorces.  This is because most professionals involved with divorcing parties, especially attorneys and judges, see how destructive conflict in divorce is to the parties and, when they have children, to the children of divorce and to the co-parenting relationship. To understand divorce conflict fully would fill a book, but your authors plan to address the topic in bitesize pieces.  This is the first piece.

There is context for understanding the two different worlds in which we live. At times, sources other than psychologists tell us much about human nature and the challenges of living with other human beings.  We are reminded of documents such as The Federalist Papers, in which Madison, Hamilton and Jay explored governance given the nature of group psychology.  James Madison is in our minds the first great American psychologist, so insightful into human nature, both the good and the bad.

Another great source are the novels by Lawrence Durell that make up The Alexandria Quartet.  Not easy to do, he tells the same story over four times, but each time from the perspective of a different character in the story.  What Ken learned from those books is that the world of each character makes the story a completely different story.  Each had experiences not had by the others, but even the experiences that they shared, were, for each of them, different experiences, even though the facts that are shared were the same.  Isn’t that true of all relationships? Don’t we share some facts in our relationships, and don’t we have experiences not had by the other person?  

We are all under the illusion of living in the same world, when in fact we are living in very different worlds.  What does this have to do with divorce?  The not so obvious implication of this is that we are all under the illusion of living in the same world, when in fact we are living in very different worlds. This is more obvious when we think of the experiences that we do not share, but much less so when we have the same experiences. 

 If Ken’s wife, on a walk, says, “That is a beautiful tree,” Ken might look at the tree and say, “Yes, it sure is beautiful.”  However, we are not seeing the same tree, even though the “fact” is that it is the same tree.  Ken might see a tree that is beautiful because of the gnarly shape of the limbs, while his wife is seeing a tree that is beautiful because of the many shades of green.  This short conversation might go by unnoticed, but what if Ken had said, “No, that is a very ugly tree?”  Who is right? The answer of course is that Ken is “right” in his world, and his wife is “right” in her world.  

Okay, so that is a little simplistic.  But what about when Ken brings up an argument from the night before to try to get back on track, and the argument that his wife describes is different from the argument he describes.  The temptation is to say, “That is not what happened,” but our point here is that what Ken and his wife describe did happen in their separate worlds.  

Reality is relative, and reality is different.When Ken was first asked to perform family evaluations for the divorce court system in California in the early 1980’s, he had a good deal of training and experience in psychological evaluations, but none in family law cases.  He had a hard time finding an expert from which he might learn, but did find a mentor in Boston, who generously held long telephone conversations with Ken. Ken learned a great deal from his mentor.   

One of the comments that the mentor made was that when doing family law work, you have to get used to the fact that reality is relative. Ken was well aware that two people can perceive and interpret events differently, but Ken’s mentor said that Ken had it wrong; the reality is actually different.  Ken discounted the comment, still believing that there is only one reality, and that finding the true facts, although at times challenging, was possible. 

 But then, Ken had an enlightening experience in a co-parenting counseling session. Both the mother and the father in the session were reasonable people.  At one point, almost in passing, the father began a sentence with, “When you were late last Friday,” followed by a description of the reactions of the children to the mother being late.  The mother quickly denied being late, pointing out how she looked at the clock in the car and even checked her watch.  As further proof, she reported that the children did not say anything to her about being late.  The implication was that the father was lying.  He quickly escalated and spoke of how upset the children were and that they were probably scared to bring that up with their mother.  

Ken made inane comments about maybe either his or her clock being off, thinking that either she was late or she was not – a fact. They continued to argue.  What came to Ken’s mind was what his mentor had told him.  Ken then told the parents what the mentor had said. and asked, “What if in the mother’s world, she was really on time and in the father’s world she was really late?” 

Neither parent wanted to accept that initially, but then the discussion took a completely different turn.  They began to discuss what to do with the children to correct their experience, because the children lived in both worlds.  They were reasonable people focusing on their children, not arguing about who was right.

People live in their worlds, where reality itself is different for each of them. The premise is hard to believe for us, because we do not like the implications, at least at first. However, twenty years later, Ken is completely convinced that people live in their worlds, where reality itself is different.  To return to our earlier example, Ken now realizes that the argument he had with his wife was really two different arguments. Neither one of us was lying, and here we include giving our experiences defensive spins.  The implications are twofold: 

• accepting that we live in different worlds, and 
• bridging the gap between those worlds, so that we can understand our experiences and have a platform from which to act. 

This is what we do next.  

Never take personally anything another person says or does.The great Don Miguel Ruiz, a Toltec wise man, advises us that we should never take anything that another person says or does personally.  The wisdom behind this advice is that the comments and behavior of others makes sense in their worlds and speaks to who they are in those worlds, but might have little or nothing to do with usand our world.  Occasionally, what others say or do might include useful information for us, about us, and we can use or ignore that information, but we should not take it personally.  This leads to objective reflection on ourselves-honesty with others, when we are being criticized, and humility, when we are being praised.

What does this have to do with divorce?  While in some cases people are lying, usually people are telling their truths, and the differences reflect not dishonesty, but a failure to have bridged the gap between their separate worlds.  In the legal system, we like to get to the facts, but what if the “facts” are actually different for each party?  What if an accused party of abuse, really was not abusive in his or her world, but was abusive in the accuser’s world?  We do not like to think this way, but what if that is reality?  Should we ignore the way things are, or should we develop approaches that work better than proving who is “right.”

How do we bridge the gap between realities?  There are two ways to bridge the gap between worlds: 

• communication and 
• games.  

Communication is essential in bridging the gap.  If when both Ken and his wife see a beautiful tree, the only way to bridge the gap between their worlds is to communicate.  Ken can ask his wife what about the tree is beautiful to her, and she can do the same.  They then have a fuller picture because they have information about both worlds.  If Ken and his wife explain the argument that they each had, without digressing to getting defensive or trying to determine who is “right,” they can understand what happened and take steps to recover from the argument, taking into consideration what they each said.  In many divorce cases, a common problem undergirding the conflict is poor communication.  Failing to bridge the gap between worlds, the spouses are unable to take corrective action, first as spouses and then as ex-spouses.  

Bridging the gap with games is subtle and not so obvious.  Games have players, rules, choices to be made (or strategies that reflect a series of choices) and payoffs.  The structure of a game bridges the gap between worlds.  Two complete strangers can sit down to play the card game Bridge, as partners, even though they live in two completely different worlds, and while playing the game be in the same world and even win the game together. We play games in all parts of our lives. Some of those are obvious, like a card game or tennis, and some are subtler, like speed limits on the road and heating our house.  We sometimes think of games as fun and light-hearted ways to interact with others, but some games, like war, are quite the opposite.  Even our relationships are filled with games.  The people in the relationship are the players, where relationships have unspoken and sometimes spoken rules.  In games, there are choices available, and there are payoffs depending on the choices made.  Marriage is a game, with players, rules, choices and payoffs.  It is no accident that having an affair is called, “cheating.” 

Divorce is also a game.  If we accept the premise that communication weaknesses make bridging the gap between the two worlds of divorcing spouses unsuccessful, then the game of divorce has much to do with how the divorce goes.  This has been the focal point of our two books.^[1]  If we accept that divorce is a game, then the field of mathematics called Game Theory, can be helpful in analyzing the traditional family law system, that is, how the rules, choices, strategies and payoffs of the current system work and what are the predicable outcomes.  In both books by your authors, we also propose a model based on Game Theory that has a better chance of positive outcomes for parties and the professionals in the system.

How the rules and payoff structure are organized greatly affects the outcome of the divorce game.  Because the professionals establish the rules and structure the payoffs, they gain control of the process. This is neither good nor bad- just the fact. As an example of a rule,mediators often make it clear that there are no interruptions when one person is talking, until that person has finished.  Some mediators even use a “talking stick,”^[2]to enforce the rule.  Taking turns communicating undercuts emotional escalation, and makes for better listening to each other.  As another example of a rule, attorneys might insist on four-way negotiations in order to maximize basic communication principles, to ensure that everyone has the same information or to facilitate a convergence of expectations^[3]on settlement solutions.  As an example of apayoff structure, the standard might be an equitable division of property and debt at the time of the divorce which will have one effect on the negotiations and settlement options. As alternative to that rule, it could be agreed that the goal is for both spouses to have the same wealth level five years after the divorce, which will have a completely different effect on negotiations and settlement options.

As we discuss in both of our books, the traditional family law system has rules and payoff structures that tend to promote conflict, self-defeating choices and less than optimal outcomes for parties.  The bad news is that the historical momentum behind the traditional family law system makes it very difficult to change.  The good news is that law does not need to change for lawyers, especially, to change the rules and payoff structure in order to optimize outcomes for their clients.  Different rules and payoffs can be agreed to and implemented by professionals in negotiations and mediation.  

In subsequent blogs, we will explore some of those changes and the rationale undergirding them.  

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^[1]Game Theory and the Transformation of Family Law, has more of a focus on theory and research, and Winning Negotiation and Mediation Strategies in Divorce, has more of a focus on the pragmatic application of the model developed in the first book, both available from Unhooked Books at www.unhookedbooks.com. 

^[2]It is believed that the talking stick originated in native American traditions, where a talking stick is held by one person at a time, and that person is the only person allowed to speak.  The stick can be requested and is passed when one person has finished speaking.  The group leader (e.g., a mediator) enforces the rule, usually with reminders.  

^[3]Convergence of expectations means that when people speak face to face about a problem or disagreement, options for a solution or agreement begin to emerge and become clear.