How to Mediate a Prenuptial Agreement

by Laurie Israel 

Any lawyer who has dealt with prenuptial agreements knows what a stressful and upsetting task it can be for the client. Usually, only one party wants one.  The other less-moneyed party does not, and that party is extremely hurt by the fact that the other is asking for one.  

Often the request for a prenup comes after a very long relationship, including cohabitation. The parties are already committed to each other and planning a life together.  It often comes up after the parties have become engaged.  One party’s vision of a marriage is sharing everything – including the financial.  The other may be starting to have second thoughts about sharing the financial part, although he still loves her and wants her to be his life partner.  Or, as is often the case, the parents of one party, self-made wealthy people, are putting great pressure on their son or daughter to have a prenup.  

What happens after the idea of a prenup is broached by one of the parties?  Almost invariably, everything becomes ugly. The loving relationship between the couple becomes bitter and damaged.  Some relationships never recover, even after the marriage.  Tears are always shed by the less financially advantaged spouse-to-be.  The other spouse may be adamant, but feels brutish.  Not a good way to start a marriage.  

Starting with mediation one can reduce or eliminate damage to the relationship when a prenup is certain or likely to happen.  The process lets the parties (not their lawyers) decide the terms for themselves. Mediators can help level the playing field and help the couple come together with a mutual solution that is acceptable to both. 

Mediating prenups is an excellent way to start the prenup process, and in my opinion, often the best way. 

Here’s how it works:

1.  Mediation is the message.

The first step for couples thinking about having a prenup is to know that mediation is available.  People often don’t realize that this is an option.  Many mediators are now mediating prenups, with great success.  Mediators with prenup experience need to write about it and post articles online for other mediators and for potential clients.  They should also include mediating prenups on their websites as a service they provide.  

People are searching for non-conflictual ways to negotiate prenups. About ten years ago I wrote an article entitled “Ten Things I Hate About Prenuptial Agreements,” and it’s more or less become viral. As a result of that article and others I have posted during the years, I have transitioned a substantial part of my mediation practice and my law practice to working in the area of prenuptial agreements and postnuptial agreements.  

2.  Start with the parties, not with a prenup draft.

Encourage the parties not to have one of their attorneys work on a first draft. That first draft, if received, is usually a very harsh and unwelcome way to start the process. It can make the negotiations turn bitter very quickly. If a party has received a draft from his or her attorney, suggest to that party that it should be put in the shredder.  It’s important to start anew and fresh.  If a party has received one, advise him or her not to read it and not to share it with the other party.  Often the couple may see you after experiencing a very negative negotiation process led by their two attorneys.  You need to open the door and create an entirely new chapter by means of the mediation.  

When you are communicating with the parties before the first mediation session, try to find out as little as possible about their goals (which may be conflicting).  Also, ask the clients not to share the facts of their situation (except for financial documents, see below) before the first session.  Everyone should come to the first mediation session with a fresh mind and no preconceptions.  Having a “Zen mind, beginners mind” will help the dynamics of the mediation, as well as help you as the mediator to stay neutral and unbiased.  The surprise element of the first session nourishes the vitality of the mediation process. 

The idea of mediation is for the parties to think about and mutually set the terms of their prenuptial agreement.  They are getting married, so the terms should reflect love and caring. The process shouldn’t be contaminated by the thoughts of their previous lawyers or their parents who are often the “shadow parties” behind a prenup. 

3.   Fact finding is important.  

It is helpful to have some of the parties’ financial information prior to the first meeting. They don’t necessarily have to all be provided prior to the first meeting.  These are some of the documents I request: 

W2s, paystubs, a detailed list of debts and liabilities, a list of assets, latest statements of any financial accounts, including retirement accounts. And any information regarding life insurance.  

Personal income tax returns are also important to review. Have the parties provide the past two years of returns. You will learn a lot about the clients’ finances after reviewing these.  Social security earnings statements showing historical earned income are also helpful. The mediation clients can obtain these online from the Social Security Administration site, www.ssa.gov .

At the first meeting, the mediator should become familiar with each of the parties’ factual situations.  How long have they been together?  What is their sense of the marriage?  Is it a first marriage or is it a second one with children from the first marriage? This latter fact pattern raises other issues.  Are either of their sets of parents divorced?  If the clients have been divorced, what was their experience? Have they been struggling over the prenup?  Have they had a bad experience with attorneys that have represented them in connection with the prenup? 

If a party has an ongoing business, it is very important to clearly understand its financial aspects.  This will take some time and require review of additional documents. Some questions that you should consider would be: How is the income the business generates characterized – as salary or business income? Who controls the earnings that might remain in the business?  What is the fair market value of the business? If there is a recent financial statement of the business (such as in connection with a loan application) have that as part of the package to review.  Look at the past 2 years of business income tax returns.  A full understanding of the business by the mediator and by the parties (including the non-owning party) is crucial to formulating a sound prenup plan. 

Often the idea of a prenup comes from the moneyed parents of one of the future spouses. In the case of parental wealth, a spouse may be asked to waive all rights of the other to gifted and inherited money coming from a spouse’s parent forever.  That party needs to know what he or she is waiving.  Accordingly, in some reasonable manner, the assets of those parents need to be revealed in order to ensure waiver by the non-moneyed future spouse.  

All the information that is provided should be shared between the parties so they have full disclosure and understanding of each other’s assets and income.  The understanding of each of their finances and the reasons for the prenup should be probing and precise. 

The other part of fact finding is to find out what the mediation clients’ plans are.  Do they expect to have children?  At what point?  Do they expect to have more than one? Do they expect the mother to leave the job market?  If so, for how long?  If it’s a second marriage, how do they plan to provide for the children of the first marriage?  How do they envision providing for their own and their spouse’s needs as they age? These goals should be accommodated in a “grey” prenup. 

4.   Make sure the parties understand what state law says about divorce and inheritance. 

Prenuptial agreements vary according to state law.  That’s why it’s important that each of the parties knows what the applicable state laws of divorce and inheritance are in their state.  That way they know what they are waiving. Waiver is a very important aspect of prenuptial agreements.  In certain aspects, a prenup may even enlarge the rights a spouse would have under state law.  There’s nothing wrong with that, especially if that person is giving up other rights.

Sometimes, after receiving this information, the parties decide that they want the state law to apply and abandon the idea of a prenup.  Be open to that possibility as a mediator.  If they have made that decision after an understanding of state law, it can be a reasonable choice. Never assume the mediation will end with a prenup, especially when it’s a first marriage of relatively young people.

The laws of divorce (property division, alimony, and children) should be presented in a clear way.  Are premarital assets and inherited assets excluded from martial property subject to division in your state? (They are, in many states.)  How are active businesses treated in a divorce?  There will be case law on all these topics in your state and sometimes statutes (which will be fleshed out and interpreted by case law).  This information should be shared with your mediation clients.  

What about the laws of inheritance?  What would happen if a mediation client inherited his parents’ estate during a marriage?  What are the baseline requirements of inheritance from the estate of a spouse in an ongoing marriage?  Knowing what these rules are will assist in defining differences that may be part of your clients’ mediated prenup. Too many prenups address support, but leave out provisions that would apply in the case that the marriage ends because of the death of one of the spouses. 

The laws of “Community Property” states like California and Texas and many equitable division states, provide that prenuptial property and inherited property is separate property and not marital property.  If you live in one of those states, and this is your concern, then you’ll want to figure out the reasons to still enter into a prenup.  

Remember, mediators are allowed to provide legal information (but not legal advice). So you can and should provide this information to your mediation clients. And you should do this sooner rather than later.  Prenuptial agreements should not be created in a vacuum. Understanding of the law is required. To assist in this, I hand out a state law summary of my state’s divorce and inheritance law and discuss it with the clients. 

5.  What are their aims and concerns?

It is important to know exactly what concerns your mediation clients have.  What their sense of the marital partnership and its financial aspects are.  It’s also important to find out their respective views on prenups, which might be quite divergent. Part of leveling the playing field is hearing from the person that doesn’t really want a prenup. That person often is concerned or fearful about expressing their concerns. 

It’s also important to have the clients air their views on all of the substantive issues that would be in the prenup.  If someone is concerned about receiving a potential inheritance, fully discuss it.  It should be viewed through the filter of all the other financial information that you have obtained, and foreseeable (and unforeseeable) future financial circumstances.  What if the other party will receive no inheritance?  How old are the parents of the party with the expectancy?  What if the marriage is long-lasting?  Does it still make sense to forever isolate the inheritance as separate property?

6.  Think outside of the box.

Remember that prenups don’t need to be an “all or nothing” thing.  Any issue can be sliced and diced.  For instance, gains from, and income derived from separate property can be always considered separate property, or not.  Income from separate property can be shared as marital property, and even gains from separate property.  Or the sharing can be staged in percentages.  The sharing percentages don’t have to be fixed – they can start at some point after the wedding and even accelerate as the marriage grows longer and proves itself as durable. 

Remember, a prenup can seek to address every financial issue, although public policy considerations make child-related provisions and spousal support subject to court jurisdiction. A prenup can also be as bare bones as one that leaves all issues to be decided by the parties, and if they cannot decide, require arbitration, and not litigation.  

Often a prenup leaves spousal support to be decided by state law, or puts reasonable limits on it, drafting it so that it would likely not be overturned by a court.  Clients can also consider and adopt “sunset clauses” by which the prenup self-destructs after a certain anniversary of the marriage.  

Sometimes, after meeting with mediation clients and explaining the law of divorce and inheritance, the couple opts not to have a prenup.  This option should be left open as a choice.  Too often the prenuptial agreement takes on a force of its own aided and abetted by the mediator or the attorneys, without considering the alternative.

7.   Make the prenup as generous as possible.

It is understandable that a person coming into a marriage with great wealth would want to protect him or herself from loss through divorce and from litigation.  And yet, being overly protective about their money may diminish the strength of the marriage.  One must ask themselves, “What’s more important, money or the marriage?” and “How much money is enough?” It’s good for the marriage if a balance is struck. 

Marriage thrives on generosity.  Make sure the less-moneyed spouse has a stake in the financial success of the other spouse.  Make sure the marriage builds up marital assets and security for the less-moneyed spouse.  Make sure that provisions about a spouse’s ongoing business are fair.  Otherwise, the result could be an imbalance between the efforts of the business spouse that redound for him- or herself, and the efforts of the other spouse, which may be 100% towards supporting the marriage.  This is a recipe for marital disaster. 

Think about, and make plans in the prenup, for mutual inheritance terms to apply if a spouse dies when the marriage is ongoing.  Many prenups totally omit this important protection that signals love and caring for a spouse. 

Also remember, the more generous the prenup is, aside from having intangible benefits supporting the marriage, the more enforceable it will be. And a spouse will have little desire to litigate a generous prenup that provides reasonable security if there is a divorce. Courts tend not to overturn prenups that have reasonable terms providing adequate security for the less moneyed spouse. 

8.  What to do about shadow parties.  

Often a prenup is initiated by the parents of one of the parties.  These parents have inherited or self-made wealth, and are very protective of it.  They want to be able to transfer wealth to their children by gift or inheritance without it being subject to the claims of a child’s spouse in a divorce.  Not surprisingly, this can easily poison the relationship with the parents and their child’s spouse-to-be.  

Third parties who are exercising control are termed “shadow parties” by lawyers and mediators. They put their child in a very bad position:  you can please your parents and comply with their demands and hurt your spouse to be, or you can please your fiancé, and alienate you parents.  Many times, worsening the situation, the future spouse is represented by an attorney chosen by the parents.  That “family” attorney follows the marching orders of the parents, otherwise that attorney would lose their client (the parents).  This is not rocket science.  It happens.

If possible, the more-moneyed future spouse should retain an attorney independent of his or her parents.  The mediator should let both parties air concerns about the impossibility of pleasing both the less-moneyed spouse and the other party’s parents. That party is truly between a rock and a hard place. 

Work with the clients to build equity and generosity into the prenup.  These can be structured in tandem with the parents’ desire to protect their wealth from a child’s divorce.  A good term to think about which balances these two aims is to have income and perhaps some principal coming from the parents to their child become marital rather than separate property upon receipt. 

9.  Start with a term sheet. 

Many prenups start with a draft document from one of the attorneys, generally the attorney for the more-moneyed future spouse.  The terms of the prenup are imbedded in this draft.  This sets up a negative dynamic.  The first draft draws a line in the sand.  It is an uphill battle to change the terms of it, even with the consent of the more-moneyed party.  The memory of those very negative initial terms damages the relationship.

This is why mediation is such a good way to start the process.  The parties can discuss various prenup terms and mutually decide on how they would like each issue handled.  I write this up as a “term sheet” and send it to my mediation clients to review and provide further input. When the terms are set, then it’s time to write up the agreement. 

10.  Writing the agreement.

If the mediator is an attorney who is admitted in the state where the couple lives, it is often preferable for the first draft to be written up by the mediator.  It should reflect the terms agreed to by the mediation clients clearly and accurately, but also reflect their situations and their aims.  I don’t believe in having a prenuptial agreement that is in “legalese” and difficult for clients to understand, even though, to attorneys, the language might seem elegant.

I always start the prenup with a fully developed “Statement of Facts” section, which states information about the parties, their backgrounds, families, and careers. It includes information such as whether either of their parents’ marriages ended in divorce, and whether it is a first or subsequent marriage of the parties.  It also includes their aims in entering into the prenup.  These aims serve to project the love and caring they feel for each other.  After all, they are getting married, and this is not just a financial business contract between two unrelated people.  

In having their situations and aims reflected up front and center in the prenup, they will both feel more connected to the terms, which they have mutually created during the mediation process. When written this way, the agreement seems softer, more loving, and not harsh, like the impersonal template often used by attorneys. 

When the draft is approved by both of the parties, then it can be sent to their respective attorneys for review and input. 

If the mediator is not an attorney, it would probably be best to refer it to an attorney to write it up, based on the term sheet. (Each of the parties needs to be separately represented.)  It’s probably best to have the parties agree that the attorney for the less-moneyed spouse should write up the first version.  That will help level the playing field. 

11.  How to handle reviewing attorneys.  

Feedback from attorneys can be very useful.  They can make the document better, and find places where the drafting needs to be clarified. Reviewing attorneys can also find issues that were not adequately addressed or were omitted.  They will provide independent advice to their client, which is very important.  The clients, of course, can choose their attorneys at the outset, and consult with him or her during the mediation process. 

The best way to get helpful feedback from attorneys is for the couple to choose mediation-friendly, knowledgeable lawyers. The mediator can and should provide the couple with a list of recommended review attorneys.  My list includes attorneys who are very experienced in divorce law and prenuptial agreements, and who have a similar philosophy as mine in making prenups as generous as possible in order to support the marriage. My list also “screens” to make sure the reviewing attorneys are also either practicing mediators or collaborative lawyers (or both, as is often the case). 

I refer couples to lawyers with a divorce law background, rather than an estate planning or business law background. Divorce lawyers tend to have more sensitivity to the role of money and marriage.  Much of the prenup contract deals with the terms of a possible future divorce.  Divorce attorneys have the requisite experience in divorce law and can better think about and draft these provisions. 

It’s the clients’ choice as to whether they want the mediator to be copied on the drafts as they are generated by the reviewing attorneys.  The mediator is sometimes in a good position to pick up on what the parties intended as the attorney drafts come through.  Sometimes the reviewing attorneys need to consult with the mediator on an issue and  sometimes an issue may find its way back into mediation to be resolved.

Conclusion: 

Marriages can be damaged by a destructive prenup or by a harsh prenup negotiation process.  Mediation can provide an excellent method for couples embarking on this difficult (and at times, treacherous) undertaking.  It’s important for mediators with suitable backgrounds and skill sets to enter into this field, and to make the public aware that this type of mediation service is within reach.

©2017.  Laurie Israel. As published on mediate.com   All rights reserved.

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Laurie Israel interviewed in New York Magazine

Laurie Israel was interviewed by Charlotte Cowles in New York Magazine this week on her views on prenuptial agreements.   The interview includes how mediation can help couples formulate a prenup. Here's a link to the entire article.  "How to Decide if you should Get a Prenup." 

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7 Phrases Every Healthy Couple Should Feel Comfortable Saying

Words matter.  Back in the late 1960s, a Canadian philosopher named Marshall McLuan  coined an expression, “the medium is the message,” that struck a chord. The phrase went around the world.  

In a marriage or committed relationship, words are the medium. Words (and the way you say them) carry messages back and forth between the partners that affect emotions and connection.  Words are the medium that can support a marriage or partnership. They can make it thrive or destroy it. Utterance by utterance.

All words and feelings (good and bad) exist in a long-term marriage or committed relationship. They have to. That’s reality. 

But it’s the work of the ongoing partners to try to guide their language into words that will help the relationship thrive and grow, rather than corrode and wither.   (I’ll use the word “partner” here to connote both marriages and committed relationships.)

Words can convey many meanings.   They can be direct or subtle.  They can show love or hate.  The tone of voice of the person saying the words can promote harmony or hostility.  Words and their delivery can express sympathy or contempt. 

To recast a maxim that’s going around these days, “Words Matter.”

So here are some phrases that every healthy couple should feel comfortable saying that will help your relationship grow.  They’re good phrases for couples that are struggling in their relationships, too.

1.  What can I do?  I got this one from the Frank and Claire Underwood in House of Cards, the Netflix-produced political drama. 

When Claire comes home after a difficult day at work, no matter how difficult Frank’s day was like, he will ask her, “What can I do?”   He says it with caring, compassion, tenderness, and most importantly, in truthfulness. 

It shows that Frank (even though he might be a murderer at times) has a good store of emotional intelligence.

Saying “What can I do?” has a wonderful effect on a marriage.  Claire’s response is almost always, “Nothing.”  Yet, the words of caring help tremendously.  When the words are said with deep honesty, as the Underwoods say it, they are relationship builders.

2.  What do you mean by that?    Relationships can be the Tower of Babel in terms of speaking and not understanding the other person. Even when we’ve lived with the person a very long time.  

We make assumptions as to what the other person means by projecting our own values and history on the words we hear.  These misunderstandings are surprisingly frequent.

Sharon Strand Ellison, in her book, Taking the War Out of Our Words, teaches us how to formulate open-ended, non-assumptive questions that don’t feel or sound like interrogations but which can unearth what the other person is actually thinking and feeling.

You can find something out about your partner when you say, “What do you mean by that?”  Replace the word “that” with the word or phrase used by your partner.  Say it in a very soothing non-threatening way. Just try to find out what your partner really means.

You may already be ticked off by your partner, so take a breath, assume the best, and ask the question in a musing, vulnerable, unguarded way.  If you ask it in a suspicious or aggressive tone of voice, it won’t work. 

When it does work, it opens up new lines of communication between you and your partner.

3.  Say “Thank you.”  This one seems so easy and simple, and yet, we don’t do this enough with our partners.  John Fiske is a lawyer/mediator in Boston, who believes that all marriages rise and fall on two factors – “control” and “acknowledgement”

“Acknowledgement” means giving your partner the appreciation that he or she deserves, on a daily basis.  (It sounds sappy, but it’s really important).

For the “control” issue, see #4 below. But when you say it, say it with a generous and appreciative heart.  Our partners do so many things that we should thank them for.

4.  “Would you like to drive now?”  Driving in a car with your partner can be a setting for some of the most barbarous interactions you might have.  You’re not alone.   It is very typical for long-term partners to fight about control in a car – after all, your life depends on how well you or your partner drives.    

Here’s a slide show that I put together a while back that describes all the driving issues you might face with your significant other.    http://www.maritalmediation.com/2013/11/driving-spouse-crazy-literally/

The driving issues include “What is the Best Route to Take?” (Sound familiar?) “Tailgating” (anger in marriage), “Signaling Every Turn” (partners have different standards in terms of following rules),  “Parallel Parking” (people come from different backgrounds – the rural spouse may not be so good at doing this). 

And finally, the perennial issue, “Backing Up the Car” (sometimes you just have to trust your partner).  The upshot is that all the driving disputes mirror typical marital disputes.  Many of them revolve around the issue of “control.” (Thank you, John Fiske.)  Knowing that your spouse doesn’t want to get killed in the car as much as you do helps.

5.  Would you like me to help?  This little phrase can never be said enough.  You may think your partner doesn’t need help.  Maybe your partner doesn’t.  But you’ll be surprised at how often the answer is, “Yes, I would appreciate it.”  Close personal relationships thrive and fall on something called “contribution. 

Helping your partner is a contribution you can make. And just asking the question, no matter the answer, is a way of showing that you want to contribute.

People feel good about their relationships if they feel the other partner is contributing as much as they are.  Conversely, people are dissatisfied with their relationships if they feel the other person is not pulling his or her weight.

Most of the complaints and bad feelings in a committed partnership involve the issue of contribution, when you come right down to it.  So don’t let this important issue remain unsaid.  Ask if your partner if she or he would like your help. 

6.  What would you like to do?  Here’s another important one to bear in mind.  It has to do with generosity, another essential nourishment of a committed relationship. 

It doesn’t take a rocket scientist to know that the more generous you are, the more satisfied your partner will be.  And yet recently many academics (I guess they are kind of rocket scientists) are doing just that – conducting academic studies on the importance of generosity in marriages. 

It seems that when the relationship is no longer new, we tend to promote our own wishes and desires over our partner’s.  Think about it – are you ever guilty as charged of that behavior? Everyone is. 

So at least a couple of times a day, if there is an occasion, say this phrase to your partner.  You might be surprised at the answer — maybe you’ll even have a new adventure and get out of a rut.   

7.  When your partner says something to you, start your response with, “Yes, dear.”  I call this priming the pump or patterning loving behavior.  If you use it, be very care not to say it sarcastically.  But if you say it sincerely, the “dear” is said and received.  It’s a form of verbal affection. 

It’s a subtle way of saying “I love you.”  If you are a “dear,” you are loved.  “Sweetheart” is another of these love triggers. Many couples have their own terms of endearment, so just use the one that has come naturally to you in your relationship. And be generous about saying them. 

Say these words often and sincerely.  You will be amazed at how they can improve the level of tenderness you and your partner feel towards each other.  It can have a domino effect on your relationship. 

Words can create moods and emotions.  Use them well and choose them carefully. 

As published by YourTango.com on Nov. 2, 2016.

Laurie Israel is a lawyer/mediator located in Massachusetts.  You can read her articles on her firm’s website, www.ivkdlaw.com.  She is the author of the forthcoming book, “Do We Actually Need a Prenup? A Leading Expert Answers Your Questions about Prenuptial Agreements.

© 2016 Laurie Israel.    

 

 

 

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Underwood Family Values – A Template for a Marriage

by Laurie Israel

I’m a late adopter. While the Netflix-produced political drama “House of Cards”  premiered back in February of 2013, and four seasons (totaling 52 episodes) have already aired, with a fifth season in the works, I only started viewing very recently. Though I’ve been binge-watching it, I’m still in the middle of Season Two, having seen it just through Episode 19 at this point.

 

The Underwoods, the main characters in the show, have been married a long time when we meet them—26 years as the series begins. Evidently by mutual decision, they have no children, but they seem to be a very solid two-person family. For instance, Frank expresses the depth of his love for Claire in Season 1, Episode 1 in an aside to the audience when he says, “I love that woman. I love her more than sharks love blood.”

From what I’ve seen so far, it’s certainly apparent that both Claire (played by Robin Wright) and Frank (Kevin Spacey) have ethical flaws, and some pretty major ones, at that. Nonetheless, putting these aside for the moment, it has struck me that the Underwoods may have much to teach us about how to have a successful, fulfilling marriage—at least in the early episodes.

Below are some helpful pointers on marriage improvement suggested by watching the fictional Underwoods interact in “House of Cards.” Despite the possibility that the series may have been designed to fool or mislead us about them somewhat in the early going, the guidelines I’ve noted are still valid.

1. When your spouse comes home stressed out after a hard day, ask, “What can I do?”

Frank and Claire Underwood lead very stressful lives. At the start of the series, Frank is the Democratic majority whip in the US Congress, trying to do his part to run the country. Claire is the executive director of Clear Water Initiative (CWI), a highly regarded nonprofit organization promoting global clean-water access.

The Underwoods’ Washington, DC townhouse is their refuge. They come home each evening after complicated and difficult workdays and look to each other for comfort and support. At least in the episodes I’ve viewed thus far, those are things they give each other authentically and freely.

When Claire comes home stressed, Frank will often ask, “What can I do?” or “How can I help?” If Frank is strained by his work in Congress, tense from the attendant political intrigues and his associations with world powers with their own agendas, Claire might say, “I’m here if you need me.”

 

“How can I help?” It’s amazing how powerful those four little words are. It’s always helpful to say something like "What can I do for you?” or even just “I love you” to your spouse, assuming that you can do so sincerely. When said with deep honesty and caring, as the Underwoods seem to do, they are relationship builders.

Frank and Claire exchange such words often as they undertake their demanding responsibilities and trials (albeit sometimes caused by their own behavior). The way these words of care and comfort are spoken indicates a deep level of emotional intelligence and personal connection, which bodes well for their marriage. Okay, yes, I know these are just actors, but as they deliver them, the words do not seem faked; they apparently come from a depth of true compassion for each other. Maybe nothing will really help, but just knowing that the other Underwood is there to help makes a difference to each of them.

2. Value each other’s contribution to the marriage.

In divorce law, contribution to the marriage is a concept that describes how each of the parties contributed to a union. The contribution can be monetary (earning a living) or offered in another way, such as managing a household or even working in public service. In a divorce court, spouses who each put forth effort on behalf of a marriage, even if in different realms, are generally viewed as equal contributors to the marriage.

The concept of “contribution” also applies to ongoing marriages. When a marriage is balanced and thriving, both parties acknowledge and appreciate each other’s work, or contribution, no matter what form it takes. When that happens, each party feels he or she is getting a “good deal” in the marriage. When a spouse sees his or her own role or contribution as the more important one or thinks the other spouse is not carrying equal weight, the marriage begins to be troubled.

We can see some contribution troubles in the early episodes of “House of Cards,” but overall, Claire and Frank are able to appreciate each other’s efforts. Still, because Frank works on an arguably larger platform (the highest echelons of the government), he sometimes places his goals above Claire’s.

In Season 1, Episode 4, when Claire’s nonprofit has an urgent need for funding, she receives an offer of a $5 million donation through Remy Danton, a lobbyist for SanCorp, a natural gas company that is trying to influence Congress to promote fossil fuel interests. Previously, SanCorp had withdrawn its funding to CWI to punish Frank for not playing ball with them. Claire tries to convince Frank that the donation would be separate from SanCorp’s lobbying efforts, but Frank responds, “I can't have SanCorp breathing down my neck again.”

Frank and Claire’s interests are in conflict. But though Frank will put his work goals above Claire’s in this case, he suggests, “Let's find another way to raise the money.” And that’s what happens. With Frank’s active participation, he and Claire work out other channels for funding. They have both valued each other’s work and found an accommodation that supports the work and goals of each of them.

3. Don’t ask too much of your spouse, or you may get whacked.

When married couples do not support each other’s goals, bad things can happen—very bad things (warning: spoiler alert)—including death by murder.

In Season 1, Episode 9, Remy is lobbying many members of Congress with SanCorp monetary offers in order to shut down the Delaware River Watershed Act that Frank and Peter Russo, an up-and-coming congressman controlled by Frank, are supporting. Claire has $200k worth of water filters for a flagship water project that are trapped in Sudan and need to be released. She proposes to Frank that she use Remy’s influence to get them out. Frank angrily and firmly says no.

Then Frank asks Claire for a favor: to personally meet with two wavering liberal congressmen who don’t think the Delaware River Watershed Act goes far enough. Their two votes are needed to pass the Watershed Act.

Frank is certain that Claire would be able to encourage them to change their minds and support the bill. He asserts, “They respect your opinion.” Claire pushes back, replying, “So what you’re saying is that my goals are secondary?”

Feeling devalued, Claire sabotages the meeting with the two congressmen, making herself directly responsible for the failure of the bill, and also (warning: spoiler alert), due to its failure, proximately causing the death of Peter Russo.

So we can see that it’s important not to ask too much of your spouse and not to place your goals above your spouse’s. After all, you might just get whacked…or someone else might get whacked.

4. Value your spouse as an attractive person, and do things your spouse likes.

These are simple rules but are often forgotten in a long-term marriage.

We’ve seen that Frank evidently adores Claire and finds her attractive. In Season 1, Episode 8, they are at Frank’s alma mater, Sentinel Military College, where Frank is being honored. The college has built a new library and has named it after him. Remy Danton (ubiquitous this season) asks Frank, “Where’s Claire?” Frank’s response: “Oh, she's here somewhere, fending off admirers.”

Speaking positively and naturally of your spouse is a good thing. In a conversation with a college buddy at Sentinel in Season 1, Episode 8, Frank’s old friend notes about Claire, “She seems like a real prize.” Frank’s response: “She is!”

In addition, spouses who do little things to please each other have the happiest marriages. In an example of spouse-pleasing behavior, Claire calls Frank “Francis” (his given name) because he likes her to do it. In Season 1, Episode 8, Frank is asked by one of his military college drinking buddies, “Does anybody ever actually call you Francis? “ He responds, “Claire does. She's the only one.” In Season 2, Episode 4, in Claire’s TV appearance, the interviewer, Ashleigh Banfield, comments, “You call him Francis.” Claire responds, “Well, back home they call him Frank, still. But he likes that I call him Francis. He’s said that it makes him sound more sophisticated.”

He likes when she calls him Francis; she does it. End of story.

Sometimes an act of giving between the Underwoods may be presented in a rather unusual way. But it’s still a gift. For instance, in the Underwood marital contract (albeit probably unwritten), one special practice is to give a spouse control over when the other spouse’s affairs should end. In Season 1, episode 5, when Frank comes home the morning after beginning an affair with Zoe, Claire asks him if it’s “just this once.” He responds, “I’m not sure.” Claire asks, “What does she offer us? When Frank responds, “The moment you want me to end it—,” Claire interrupts and assures him, “I know, Francis.”

5. Have goals and purposes outside the marriage.

As Claire puts it in the Banfield TV interview in Season 2, Episode 4, “We’re just two independent people who have chosen to live our lives together.”

This is a significant part of the reason for the strength of the Underwood marriage. They have personal goals outside the home and the marriage that are important to each of them. Having outside goals increases satisfaction and brings energy back to the marriage.

When we meet Frank and Claire, they appear to have higher goals than just their own comfort. For both of them, at least in the early episodes, altruism is shown to be a motivator. Despite his willingness to indulge in unscrupulous behavior to achieve his goals, Frank seems to believe that he is motivated to make the world a better place through influencing national laws and policies. Similarly Claire’s nonprofit assists developing countries to improve clean water access and thus save lives, which gives her a strong sense of purpose and self-actualization.

As Claire says to old beau Adam Galloway in Season 1, Episode 6, from the time she was a girl she was interested in being more than an observer in life. She wanted more than just to be seen. As she says, “I wanted to be significant.”

Frank comes from a more hardscrabble background than Claire. His family was impoverished and nearly lost their farm when he was a child. His dad, an alcoholic abuser, died at age 43 from a heart attack.

Frank is something of a “blue dog” Democrat, whose political views are at times aligned with those of Republicans. In the Southern tradition, he relies on personal connections and operates somewhat as a free agent between the political parties. That’s one of the reasons that he is such a good dealmaker in Congress. His ambitions seem to stem from the belief that he knows better than most others what will be most beneficial for the country, a notion that gives him goals and tremendous purpose, as well as a sense of individual identity outside his marriage to Claire.

6. Think of your spouse as a long-term choice, and commit to that.

After a major spat with Frank caused by her sabotaging the Delaware River Watershed Act, Claire escapes to New York City in Season 1, Episode 10, to be with Adam Galloway, an old boyfriend. But after a few days with Adam, she realizes that Frank is the spouse who is there for the long term and decides to return home.

As she explains it to Adam in Episode 11, “What I chose was a man I could love for more than a week. I have a history with Francis. I have a future with him, and it's bigger than a moment.”

A marriage is bigger than a moment. That’s why it’s usually a bad choice to have an affair, even if both spouses agree that they will allow that as part of their modus operandi.

7. The best marriages are ones where the spouses make it so that they never get bored with each other.

Work at your marriage, and don’t let yourself become lazy in regard to your partner. After all, the best marriages are ones in which the spouses make certain on an ongoing basis that they never take each other for granted or put their relationship on remote control. Be active in separate interests, as well as engaging in common interests with your spouse.  Boredom is a marriage killer.

In Season 1, Episode 6, when Claire visits Frank’s previous bodyguard Steve, she opens up to him about the way Frank proposed to her. She recalls his exact words: "Claire, if all you want is happiness, say no. I'm not going to give you a couple of kids and count the days until retirement. I promise you freedom from that. I promise you'll never be bored.”

And that’s what happened.

Conclusion:

Despite behaviors they exhibit that arguably few people would emulate, in some regards it might not be such a bad idea to learn from the Underwoods. Realize that deep intimacy in your marriage can take many forms, such as spending quality time talking together (and sharing a cigarette) at home after a hard day’s work. Make sure to have outside interests. Be mindful and appreciative of the investment you have made in your marriage and in your choice of a partner. Know that a spouse is for a lifetime, and not just for the moment.

And remember, though the Underwoods may be rich and powerful and in many ways even ruthless and amoral (and even though they are just a fictional couple appearing in your home on streaming video), in some respects your marriage is not so different from theirs. Keep that in mind while striving to improve it.

© 2016 Laurie Israel. All rights reserved.

 

 

 
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Where Does Marital Mediation Fit In?

As published in the Futures Project of Mediate.com on March 2, 2015. 
AbstractMediation has been categorized into three types:  facilitative, evaluative and transformative.  In this article, Laurie Israel discusses which category marital mediation falls into.  She concludes that it has elements of all three categories, and suggests a broader definition for “transformative” mediation than the Folger/Bush model. 

During the past quarter century, academics and others writing about mediation have characterized styles of mediation as belonging to one of three categories: “facilitative”, “evaluative” and “transformative”.   The categories are quite clearly defined.  

Facilitative Mediation

“Facilitative” mediation (the original type which started to be broadly practiced in the 1960s and 1970s) involved a process designed to help clients come to agreements.  Often this was practiced in volunteer mediation organizations dealing with small business or “neighbor” disputes.  The mediators tended to be trained in mediation, but not generally trained in substantive knowledge of the area they were mediating.  

Facilitative mediation has matured so that mediators are now not only trained in mediation, but often are familiar with the substantive law pertaining to the dispute that is the subject of the mediation.  Facilitative mediators range in their views as to how important the substantive “law” is to mediating a dispute.  

Facilitative mediators use standard mediation practices such as finding the interests behind the parties’ positions, reframing, active listening, validating points of view, defusing “hot” speech and helping clarify communication misunderstandings.   

Facilitative mediation is goal oriented, the primary goal being for the parties to come to agreement. Traditionally, attorneys are not present during the mediation sessions.  Sometimes there are “caucuses” in which the mediator might meet separately with one or the other party.  

The clients make their own decisions, with the mediator “facilitating”.  The mediator structures the process, and leads (sometimes very subtly) the parties towards resolving their disputes. The facilitative mediator does not give advice, nor does he or she intersperse the mediator’s own views into the mediation. 

Evaluative Mediation

The second type of mediation is called “Evaluative” mediation because the mediator’s role is to evaluate the dispute presented to him/her through the lens of existing law.  This mediator sifts through the “facts” of the dispute and seeks to predict how the dispute would be decided by a judge or jury if brought to court.

Often evaluative mediation is entered into after a court case is in progress. Attorneys are usually present. Caucuses in which the mediator might meet separately with one or the other party are frequent.  In fact, at times the parties never meet face to face, and the mediator goes from room to room, practicing what is called “shuttle diplomacy”.  The goal is to get the litigating parties to come to agreements using the mediator’s evaluation of the relative strengths or weaknesses of party’s lawsuit to encourage parties to come to settlement.

Transformative Mediation

The final theoretical type of mediation is “Transformative” mediation.  The definition of this type of mediation was formulated by Joseph Folger and Robert Bush in the early 1990s.  Both Folger and Bush are academics, Folger now at Temple University; Bush at Hofstra University School of Law.

Folger and Bush theorize that mediation has the potential to effect deeper changes in people than just resolution of specific disputes.  It has the capability to transform, not only the relationship between the parties, but even the character of the individuals involved. 

According to Folger and Bush’s construct, the key to this transformative change in mediation is “empowerment” and “recognition”.  Empowerment here is used in the sense of a person’s power to make his or her own decisions.  A person is empowered through gaining clarity about goals, resources, options, and preferences.  The person uses this information to make his/her own clear and deliberative decisions during the mediation process.  “Recognition” is considering, acknowledging, and having empathy for the other person in the mediation.  

The mediator’s focus is to look at the parties’ interactions, and identify opportunities to assist the parties in gaining “empowerment” and promoting “recognition”.  The process is open-ended, unlike facilitative and evaluative mediation.  The goal is not necessarily towards “settlement” – settlement is presented as one possible outcome. 

Where does Marital Mediation fit in?

Is marital mediation (mediating disputes between married couples) facilitative, evaluative, or transformative?

First of all, like all mediation, marital mediation styles will depend on the personality, skills, preferences, and background of the mediator.  Mediators come from all walks of life, and with varying experiences and trainings. Mediators are not generally locked into one of the three categories. Every mediator will do his/her job differently and most combine mediation strategies to seek to make the mediation effective. Mediation, in that sense, is more like an art than a science.  

Most of what marital mediators do falls under the category of “facilitative” mediation.  However, in marital mediation often the mediator is not as concerned with helping parties get to an agreement, as with promoting understanding.  In contrast, in divorce mediation, the goal is to come to the many specific agreements needed to complete a comprehensive divorce settlement agreement.  As a result, divorce mediation has a specific goal and may be faster-paced.  

In a marital mediation, the parties are not getting along in certain aspects of their relationship.  Often this discomfort and anger has spread over to their entire relationship making their interactions quite corrosive.   Getting them to have one agreement on a troublesome issue may be helpful, but facilitating mutual understanding is generally more important.  That is why in marital mediations, a written agreement often does not result from the process.

In a marital mediation, a couple need not solve all of their problems.  There might be only one issue worked on, and when there is resolution of that issue, the parties are able to solve other issues by themselves, and the ongoing relationship improves.  So in a sense, the process is “transformative” because the mediation has transformed the marriage.  

Sometimes there might be elements of “evaluative” mediation in marital mediation sessions – particularly if the mediation clients are close to divorce and want to know what the terms of a divorce might be in their factual situation.  In these types of marital mediations, the clients may wish to enter into a postnuptial agreement to clarify their positions and relieve the stress of uncertainty in connection with financial issues that are troubling them.  

Unlike in “facilitative” mediation and “evaluative” mediation, caucuses in marital mediations are discouraged.  Caucuses involve “secret” messages to the mediator that can become very awkward and destructive to the marital mediation process.  In marital mediation the point is to make all lines of communication clear. 

The Folger and Bush ownership of, and construct around the term “transformative” in “transformative mediation” is problematic.  They have essentially co-opted the general term “transformative” to mean a mediation based on “empowerment” and “recognition”.  This puts a conceptual straightjacket on other forms and blends of mediation that both clients and mediators feel are “transformative”, within the generally accepted meaning of that word. 

Many marital mediators who primarily use “facilitative” mediation, find that helping married couples solve disputes through standard mediation techniques and clarifying  longstanding misunderstandings is “transformative” for the clients. A couple that stops arguing about something (with the help of a mediator) has learned something important about their interactions – and perhaps themselves — that they can apply to other situations.  This can be transformative to them. 

And one could say all effective marital mediation is transformative, whatever method of mediation is used.  Forcing  “transformative” mediation to be based on Folger and Bush’s construct of “empowerment” and “recognition” is too limiting.  

 John Fiske, a Massachusetts mediator, talks about the essence of spousal conflict being caused by issues relating to “control” and “acknowledgment”. Although these terms seem similar to Folger and Bush’s “empowerment” and “recognition”, the first prong of Fiske’s construct is quite different. 

Fiske, like Sharon Strand Ellison in Taking the War out of our Words: The Art of Powerful Non-Defensive Communication (1998, 2007), http://www.pndc.com/ believes that power struggles between spouses is the central theme of most marital conflicts. Fiske encourages couples in marital mediation to look at their behavior in terms of power and control, because when you scratch the surface, that is what they are generally arguing about. Fiske also posits that lack of respect or acknowledgement of the other spouse’s actions and views, aside from being usually not fact-based, is a destructive element in a marriage.  Acknowledgement encompasses being heard, understood, and respected. A mediator working with the issues of “control” and “acknowledgement” in a marriage can help a couple greatly. 

I find Fiske’s construct of “control” and “acknowledgement” more useful in my marital mediations than the Folger/Bush construct.  To see how Fiske’s construct plays out in the context of typical spousal disputes relating to driving automobiles, see my PowerPoint entitled “Driving your Spouse Crazy — Literally”. 

Unlike facilitative (and evaluative) mediation, the Folger/Bush model of transformative mediation allows and even encourages the parties to express emotions and bring up discussions of past events.  Marital mediation is more like “facilitative” mediation in that respect, in that emotions and past events are generally  (and intentionally) excluded from the mediation.  This is also one of the differences between marital mediation and marital therapy or marital counseling.  In the latter, emotions and past events are often explored and used to help a couple improve their relationship. 

Marital mediation is fact-based, communication based, and focused on the present and future.  But even though the mediation does not focus on past events, and personal and family histories, in a successful marital mediation, the result can be seen as “therapeutic” in the sense that if a marital conflict is lessened, the parties feel better about each other and their marriage.

Marital mediation is similar to “transformative” mediation in that it is open-ended.  Parties may come to the mediator with a specific dispute, but more often they come with many disputes. Taking time to solve one of them, and not forcing a solution or agreement to a particular problem in one session is extremely helpful to marital mediation clients.  Since coming to “an agreement” is not primary (but coming to understanding is), marital mediation is slower-paced than facilitative mediation, but in general, clients will use a similar number of mediation sessions in all. 

Where does marital mediation fit into the construct of “facilitative”, “evaluative” and “transformative”?  It has characteristics of all of these, as well as John Fiske’s construct of “control” and “acknowledgement”, depending on the situation, the mediator’s preference, experience and style, and the clients’ needs and visions for what the marital mediation should accomplish.

 Laurie serious cropped smaller copy 2

 

 

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Is Mediating Prenups a form of Marital Mediation?

My mediation practice during the past several years has taken a turn towards mediating prenuptial agreements.  Here’s how it happened:

At times being the “other” attorney reviewing the agreement sent by the lawyer of the more moneyed spouse-to-be, I noticed a trend: the first draft of these agreements generally sketched out a marriage with no guaranteed financial interplay. 

The typical lawyer-proffered prenup says that no (or little) money or assets are to be shared with the other spouse unless the moneyed spouse wants to.  Further, generally there is no guarantee or minimum of assets provided to the less-moneyed spouse if the parties are married at the death of the more moneyed spouse.  And there are iron-clad provisions preventing a spouse from claiming rights to the deceased’s estate. 

Once the first barrage in the prenup wars is sent by the more-moneyed spouse’s lawyer, it’s an uphill battle to change the initial terms of the agreement.  Generally the spouse-to-be’s attorney has convinced him (or her) that it is a matter of “risk contol” in case of divorce, and a restrictive prenup is necessary and proper to protect the client. 

It doesn’t take a rocket scientist to see the harm such a prenup can do to a marriage. 

During the negotiations, feelings are harmed, generally irreparably.  I have seen people walk down the aisle with a marriage – with all but the financial connection. The feeling of being abused and marginalized persists through the marriage.  Having little or no vested martial rights weakens and harms the marital relationship.

Of course, these concerns apply much less (and sometimes do not apply) to later-in-life marriages where the parties are financially secure and there are children of previous marriages.  For these people, a prenup is often helpful to create family peace and provide for one’s own children at death, often balancing this with the needs of the new spouse.

Mediation is an excellent way for people to resolve their differences and have clear communications.  A mediator can help level the playing field, and elicit all thoughts and concerns of both parties in a nonconfrontational setting.  Mediating these conversations helps the clients discuss difficult issues without emotions, anger, and hot speech overcoming them.

The discussion can be rational and productive.  Ideas as to how to fairly and accurately balance and accommodate the parties’ legitimate concerns can be proposed by the parties and the mediator.  Some of the mediator-proposed ideas may be ones that the parties may not even have thought about or thought were possible.

So a number of years ago, I started suggesting to clients who approached me about prenuptial agreements to consider formulating them through mediation.  It turns out it is a wonderful way to do a prenup.  At the end, the parties almost invariably feel fairly treated, and the resulting prenup is not overreaching or over-restrictive.

How does mediating a prenuptial agreement relate to marital mediation?  Marriage relies on generosity.  See <a href="http://well.blogs.nytimes.com/2011/12/08/is-generosity-better-than-sex/?_php=true&_type=blogs&_r=0" target="_hplink">“The Generous Marriage”</a>, by Tara Parker-Pope (The New York Times 12/8/11)   http://well.blogs.nytimes.com/2011/12/08/is-generosity-better-than-sex/?_php=true&_type=blogs&_r=0   In this article, the author discusses a recent study by the University of Virginia’s National Marriage Project (a marriage research think tank) that studied the role of generosity in marriage.   Its conclusion: generosity is the glue that leads to increased “happiness quotients” for marriages.  Significantly more of the couples in a “generous” marriage reported being “very happy” together.

Cutting your spouse out of your earnings and financial wherewithal (which many standard-issue prenups do) is ungenerous.  The old adage “money is love” is really true.  It is an expression of love and caring.  As the National Marriage Project’s W. Bradford Wilcox (who led the “generosity” research) said, “Living that spirit of generosity in a marriage does foster a virtuous cycle that leads to both spouses on average being happier in the marriage.”

So, in essence, premarital agreement mediation is a form of marital mediation in several senses:  it encourages generosity, truthfulness and clear communications.  It’s about money and security, which is a deep concern in marriages. It helps to train the couple in their ability to discuss and resolve difficult issues.  This is identical to marital mediation where couples are struggling over difficult issues, often money issues, which are extremely common in marriages. 

Facilitating a client-controlled prenuptial agreement with honesty and direct communication between the spouses-to-be, means that you are helping the couple embark on a stronger, clearer, more generous marriage.  This bodes well for the health of the marriage. 

So, as I started, is mediating prenups a form of marital mediation?  The resounding answer is “yes”.

© Laurie Israel 2014.  All rights reserved.

 

 

 

 

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Use of Marital Waivers in Marital Mediation

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As published in The Huffington Post, April, 2014.

All married people struggle with disputes that arise in a long-term committed relationship. What to do about the predictable and ever-repeating disagreements and mutual criticisms that come up from time to time, but hopefully not too often. As Daniel Jones, editor of the “Modern Love” column in the New York Times puts it, marriage can be punctuated by “deadening routines, cyclical arguments and repetitive conversations”. 

 

Let’s take one typical marital argument:

Spouse A likes to pack as efficiently as possible for a vacation. Spouse A’s rolling luggage can be brought onto the plane and stored in the overhead bins. It’s packed so tightly, that it looks like a three-dimensional puzzle.

Spouse B likes to pack amply for a vacation, even if not all the packed items are used. Spouse B does not like to think of possibly needing clothing or sundries during the trip. This means a larger suitcase for Spouse B, due to the less careful packing. And B’s suitcase needs to be checked and cannot be brought onto the plane. Another downside is that it is very heavy to carry and even to roll. Spouse A ends up mostly carrying it or rolling it, because Spouse B just can’t handle it alone.

At the beginning of each trip, predictably, like clockwork, there is a heated discussion (really, a very hot argument) about what to bring, and how to pack. The discussion spins downwards and can become very nasty. Oh yes, I forgot to tell you that Spouse A and Spouse B have been married for 30 years.

You may possibly see yourself (perhaps in a different repeating situation) in this little cautionary tale.

You could go to a marital counselor or marital therapist to try to gain some insight into the battle. The therapist may delve into family histories, family or origin structures, early training, gender based differences, and may segue into your fighting and arguing styles. The therapist may give you tools to listen to each other better, or communicate more about the luggage.

You could also go into individual therapy with a psychotherapist, who may investigate your (Spouse B’s) need to pack so amply. The therapist may also analyze Spouse A’s tight packing behavior, and help the each individual understand the basis of his/her and the other’s spouses attitude, and perhaps develop some understanding.

There is an easier and more economical solution: a Spousal Waiver.

A Spousal Waiver is useful when Spouse A and Spouse B realize that there is no changing the other’s views and feelings around an issue, such as packing-for-vacation. They feel comfortable maintaining their own packing styles. They have come to the mature realization that how you pack for vacation is simply not worth fighting about

This gives Spouse A and Spouse B the freedom to pack as they each wish. According to the rules of the Spousal Waiver, either party should not be harmed. So theoretically, Spouse B (even if weak) should pull his/her own luggage, although Spouse A may, at times, offer to pull it. Yes, it will take more waiting time at the airport to retrieve Spouse B’s luggage. I would think Spouse B could make amends for that during the holiday.

The result: one more little destructive dispute in a “gray” (longstanding) marriage is eliminated, and the marital satisfaction quotient becomes higher. The dispute probably is unresolvable, even with deep therapy and analysis. Spouse A and Spouse B are just different. They can endeavor to accept that without trying to change the other.

This is more or less the approach of Marital Mediation, in which mediation techniques are used to resolve marital disputes, large and small.

In Marital Mediation, disputes (even nasty ones) are analyzed, and mutual resolution on the issue is aided with the help of a neutral third-party – a mediator – being present to organize and facilitate the discussion.

Generally, there is no delving into the deep-seated reasons for behaviors or attitudes. There may be an analysis of the practical result of making alternate decisions. Then a solution is suggested, either by one or both of the parties, or the mediator. The agreement can be written down, or can simply be understood to be the rule that the couple will follow in the future.

In this case, each party’s differing interests (packing amply, or packing carefully) can be respected, which goes far beyond angry toleration. Transactions like these improve the daily commerce of a marriage.

So the next time you and your spouse have a dispute, ask yourselves, is it really important? Does it have to be “my way or the highway”? Can one of you give a Spousal Waiver to the other on this issue? You might find you can clear away some of the unnecessary detritus in your marriage by following this simple technique.

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Susan Boardman’s Article on Marital Mediation published in Conflict Resolution Quarterly

Susan K. Boardman, a family mediator based in Connecticut, has been working in the marital mediation field for many years, as a practitioner, teacher, and writer. Her seminal article on marital mediation has appeared in the recent issue of Conflict Resolution Quarterly. It is now available on line. The online access to the article will last about 10 months, so we encourage you to print out this fine article now. Here's the link: "Practice Note: Marital Mediation: A Psychological Perspective."

Thank you Susan, for your excellent work in this field.  Your efforts in conceptualizing marital mediation, and the difference between marital mediation and marriage therapy/counseling as explained in your article are very helpful.

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Driving your spouse crazy – literally

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How is marital mediation different from marital counseling?

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Marital mediation – a new application of mediation

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Mediator as Truthsayer

Mediation is not one monolithic technique.  Mediators and mediation theorists may categorize different types of mediation techniques into different theoretical boxes, such as “facilitative”, “evaluative” and “transformational”.  But the categories all seem to bleed into each other.  At its core, mediation has as much variety as there are mediators, mediation clients and issues being mediated.  Because of this variety and variability, mediation seems more like art than science, with unpredictable pathways through the process, and surprising results, if the mediator gives the clients space to evolve in their understanding of each other and the dispute.

There are various philosophies that swirl around mediation.  One says that mediation is “client-directed”.  Whatever the clients want, that’s what the mediator arranges in settling the clients’ agreement.  The problem with client-directed mediation, is that the skills, background, and experience of the mediator are discounted and not taken advantage of by the clients.

This is true especially in an area such as divorce mediation or prenuptial agreement mediation, where the mediator (generally) has extensive knowledge of the operant law and the possibilities of resolution for each of the issues involved.  There is no reason to expect a mediation client to be an expert in divorce law or the laws pertaining to prenuptial agreements.  An understanding of these laws are important for the clients, and can enlighten and enrich the process of dealing with the practicalities inherent in ending a marriage or formulating a prenuptial agreement.

But what about that mediation rule that mediators are not supposed to give legal “advice” during the course of a mediation, but can provide legal “information”.  What is the difference between legal “advice” and legal “information”?  That’s a slippery slope that all mediators deal with on a daily basis.

A mediator cannot pretend that he or she knows nothing about divorce law or the law of prenuptial agreements.  That would be absurd, because many of the issues that the clients are addressing are legal ones, and certainly, the clients are not supposed to be experts in the law.  So, legal information must be rendered by the mediator, at least initially, subject to input by the clients’ reviewing attorneys (if they have any).

What about the “elephant in the room” that sometimes comes up in mediation?  This is the little but very important fact that is unsaid, but lingers in the background, infusing the entire mediation with an element of untruthfulness.  That elephant may need to be acknowledged and discussed openly in order to have all the relevant information accessible to make a well thought-out agreement by the clients.

How, when (and should) the mediator bring up the “elephant in the room”?  Some of these elephants are quite large and important.   Not saying something reminds me of the Hans Christian Andersen tale, “The Emperor’s New Clothes”.  We as mediators, frequently face this issue.  Should the mediator say something when he or she sees something, even if the clients have not brought it up, like the message in the subway, “If you see something, say something”.  Or should the mediator remain silent until (and unless) the clients bring it up?

Clients engage us as mediators for many reasons.  Sometimes they simply view mediation as a money-saving way to resolve their dispute.  At times they choose us because they are afraid that engaging attorneys will make their disagreements more difficult to resolve and may be detrimental to their ongoing relationship.  They generally, carefully choose their mediator based on the mediator’s experience and background, and also their sense of whether the mediator’s personality and approach will be compatible to theirs.

Mediation clients don’t choose a computer program or a machine.  They choose a real person, with intellect, his or her own background and experience, and knowledge of the operant law in their dispute or issue.  How silent should the mediator be in the process?  When should the mediator follow and when should the mediator lead?  Should the mediator say the “truth” as he or she sees it when an issue comes up that the parties may not understand clearly? Or should the mediator remain silent?

The danger being a “truthsayer” when you’re a mediator, is that your “truth” (sometimes unbeknownst by you) may support or give the appearance of supporting the position or view of one or another of the clients.  This can happen even if the connection between the “truth” said and a party’s position is quite attenuated, because mediation clients can sometimes be very fragile. As a result, the mediator becomes tainted with perception of bias or lack of neutrality.  Usually, this immediately ends the success of the mediation.  So being a mediator “truthsayer” can pose great risks to the process.

However, there are also strong benefits for saying the “truth” as you see it, at least sometimes.  Mediators often try to appease both sides of the mediation.  In doing so, the mediator can be perceived as untruthful, and both sides can lose respect for the mediator and the mediation process weakens.  For this reason, a word of “truthfulness” by the mediator can have a powerful effect in mediation – perhaps leading to a resolution , even if it temporarily seems to support the position of one side rather than the other.  Both sides can feel like there is a person in the room that can provide feedback that can help them resolve their dispute.

The mediator’s truthfulness should always be balanced with a demonstration of support and respect for other mediation client and should include an explanation of why the mediator sees the issue that way.  It’s dangerous, but can move things strongly forward.

If it’s done in a non-threatening way, the other party will also have a chance to express and clarify his or her view.  As a result, greater mutual understanding on the issue by the clients can occur.  Even small changes in view might lead to resolution on the issue and could have a ripple effect to lead to other agreements in the mediation.  Bringing the parties to agreement may be better served by an active mediator, even though much of the activity might be subtle.

 

The most important factor in mediation success and not allowing the mediator’s “truth” derail the process is that the mediator has respect for both clients.  This respect should be evident and actual – demonstrated by words, listening, comments, and structure – or else the moment of “truth” might be too dangerous.

In this safe setting of respect, when the mediator offers his or her “truth” in the right way at strategic times in the mediation, the small changes and cumulative understandings that can make the mediation successful can be greatly facilitated.

As published in The Huffington Post, October 23, 2013

© Laurie Israel  2013

 

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A Look at Betrayals

Anna Fels, is New York psychiatrist and faculty member at Weill Cornell Medical School, writes about how betrayals affect the betrayed and the betrayed.  In her practice, she addresses many types of betrayals — alcohol, infidelity, spending.  The commonality is they they are all hidden.  Here’s the article:

Great Betrayals, by Anna Fells, M.D.

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“As a psychiatrist I find that friends frequently seek me out to discuss problematic events in their lives; it comes with the territory and I’m usually happy to do it. But I was surprised and shaken to hear from an old friend that her husband of nearly 25 years had long been accruing and hiding from her a huge credit card debt (in the six figures). Even after divulging his secret, the husband had lied about the amount, with the sum increasing every time it was discussed. And right from the start, he refused to document where the money was spent. He left it for his wife to ruminate on, trying to puzzle it out. The disclosure wreaked financial and emotional havoc on their family.

After my initial shock at this unsuspected betrayal, I began to recall patients I had seen whose situations were not that dissimilar. They were people who had suddenly discovered that their life, as they knew it, was based on a long-term falsehood. They were people who might have stumbled across family secrets on the Internet or found old bills from a spouse’s long-hidden liaisons.”   To read more, click here.

Art by Anthony Russo, NYT

 

 

 

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Will You Still Love Me When I’m 164?

Times Magazine just published an article on the new old age.  How might marriage change if humans could live 150 years, which scientists now believe is possible.   Will people have several successive spouses?  Family therapist Winifred M. Reilly ponders this conundrum in her blog, “Speaking of Marriage”.  Will people still speak the  words “until death do us part”  in marriage ceremonies?

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Eliminating “Hot Speech” in Marriage

As published on The Huffington Post, Divorce section, September 10, 2013. 

We live in a very fast world.

Information is shared instantly.  A public figure might do something at 9 a.m., and by 9:15 a.m. it’s all over the Twitterscape and Facebook.  By 10 a.m. it is on the internet, which now functions as mainstream media.

Remember the beginning of email?  Email was a major breakthrough that changed the way people communicated. Work has become more efficient. Personal exchanges are facilitated. Text messaging is even faster than email because you hear a little beep on your smart phone and, of course, you are impelled to respond.  Text messaging is now a primary way people under 40 (and some older) communicate in their daily lives.

The rapidity of communication promotes “hot” speech.   “Hot” speech is angry and ill-considered.  It is made without much forethought when in an excited or emotional state.

For instance, you get an email containing statements, some of which you disagree with.  You respond immediately.   Since you can’t help but check your emails every three minutes (time yourself), you notice the response to your response, to which you respond.  This causes a flurry of emails with a great deal of reaction but not a lot of reflection or forethought.

But the very “hottest” speech and the most uncontrollable is when you are actually speaking with other people face to face.  This “live time” talk goes on without the pauses for thinking and composing your thoughts that can occur when you write an email or a text message.

Hot speech between spouses can be very damaging to a marriage. When you’re with your spouse, you don’t have to act as civilized as you do in social situations with friends or at the workplace. With your spouse, the boundaries are lowered.  In marriage, sometimes, people act at their worst – because they can with that one person.  Spouses tend to let everything hang out.  That causes a lot of problems and can even lead to divorce.

In my work as a marital mediator, I’ve worked with couples whose communication is at a low point.  Everything out of a spouse’s mouth seems (and actually might be) negative. There is anger and frustration in every verbal interchange.  Contempt is rampant. The reactivity gets worse and worse. The couple can’t seem to break the pattern of negative interaction.  It is clear that these people are headed for divorce.  No one can live that way!

In situations like this, I use a special technique.  I call it the “writing-notes-in-longhand” technique.  It is very effective in breaking through negative communication patterns.

Here’s what I do.

I ask the couple to do the following as homework for an entire week:  Make sure all communication during the next week is by handwritten notes. And I mean all communications.  Even the mundane ones, like “Can you walk the dog now?”  And I mean handwritten – not email, and not text messaging.

This does several things:

1.  It slows down the “hot” speech.  Now you have to sit down and handwrite a note when you want to say something.   You really have to think when you write.  Writing in longhand slows you down.  Your spouse (or partner) has to do the same.  It’s like taking an adult “timeout” before reacting.  It builds in time to consider the other’s point of view and how you want to express yourself in the most effective (perhaps even kind) way.

2.  The slowdown changes the entire tone of the interactions.  Writing communication in longhand promotes accurate and precise formulation of issues.  It helps you collect your thoughts and contemplate what you want to say.  Anger dissipates quickly.  Emotions calm down.  Furthermore, reading what your partner writes gives you a chance to absorb what the other has said without your limbic brain (emotions) getting in the way.

 3.  By slowing down the verbal interchange, you can focus on your concerns and needs in what you write.   This is consistent with a mediation technique which is to focus on a party’s “interests” rather than “positions”.  When you hold to “positions”, it leads to non-thought and anger, and leads to stalemate.   Identifying and expressing  your “interests” rather than your “positions”,  you and your partner can enter an area of understanding and mutual accommodation.

4.  When slowed down, a couple starts to see the fallacy in their anger.  Often the anger is caused by miscommunication, misunderstanding, or a lack of compassion.  Slowing down helps you see the other person’s point of view and promotes sympathy and respect.

5.  Remember that anger is an emotion.  Nine times out of ten, anger is an illogical or overblown emotion to the situation you are reacting to.  Anger is destructive.  Writing communications promotes logic and generally stops anger it in its tracks.  Then you can start really dealing with the issues at hand.

6.  Anger is not a good thing.  Some of the modern psychological literature says that anger is a healthy response and you should not suppress it.  I disagree with this conclusion.  I think anger builds anger, both in the person expressing it and the person receiving it.  It’s not a good way to solve problems.  By taking a timeout, you can become calm.  You are no longer in “real” time.  Emotions abate.  When you write, you will probably express your frustration in a more rational and less confrontational way.   It’s good to be pacifistic in your communications – especially with your spouse.

So give the “writing-notes-in-longhand” technique a try.  It promotes a calm and placid atmosphere where people can feel heard and accepted.  It’s a place where people can be thoughtful instead of reactive.  It helps you lead by your mind instead of being led by your emotions.  It’s a manifestation of patience. And patience can lead to many good things, including regaining a loving space with your spouse or partner.

For The Huffington Post version, click here.

© Laurie Israel 2013.

 

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Seven Principles for Keeping Marriage Strong

This poster was in Yes Magazine, and is from John and Julie Gottman, of the Gottman institute.

Yes Magazine is an online publication with a section on “happiness”. 

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Elizabeth Weil’s book details marriage improvement efforts

 

A book, “No Cheating, No Dying: I had a Good Marriage. Then I tried to Make it Better”,  resulted from Elizabeth Weil and her husband, Dan Duane’s work on their marriage, after a full-length article about her seeking for marriage improvement published in The New York Times Magazine on December 6, 2009.  Weil and her husband went the rounds — putting techniques from reading into their marriabe, followed up with a psychoanalytic couples’ therapist, who after two sessions, called her husband “neurotic” and deemed their marriage possibly beyond repair.

Then Weil and Duane signed up for a marriage education class, “Mastering the Mysteries of Love”.  There were exercises in empathy.  For instance, a spouse was  ito tell a childhood story and other the spouse was repeat it, mirroring the feelings the story evoked.  They then proceed to an Imago therapy workshop where they worked on their families of origin issue.   What they experienced was “marriage improvement” fatigue.

It would be nice to know what Elizabeth and Dan’s thoughts of marriage are, now that they are in their second decade.

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Marital mediator in “Room for Debate” in New York Times

Laurie Israel, one of the active practitioners of marital mediation (and co-founder of this website) was one of the six debaters asked to participate in the New York Times “Room for Debate” column, which was published in the New York Times on March 22, 2013.  The topic was Prenups. The questions asked were: “Should everyone have a prenuptial agreement? Do they really mean anything?” Each of the six debaters wrote a 300 word response. Laurie_edited-1 copy for ivkdlaw websiteThe views on the topic ranged widely. You can access the debate from this link.  Laurie’s response notes the problems that prenups generally pose in first marriages.  This was Laurie’s response in the debate.  Brad Wilcox, of the National Marriage Project located at the University of Virginia also weighed in on the topic.

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What’s the “Parental Divorce Reduction Act”?

We just heard about this proposed act.  It was formulated by a team of experts.  The Parental Divorce Reduction Act requires parents with minor children to attend marriage education classes, and to take an eight month “time out” to consider their decision to divorce.

Here’s a link to the draft Act.

The Coalition for Divorce Reform is the organization that formulated and is promoting the Parental Divorce Reduction Act. Divorcing couples (with children) would be required to participate in 4- 8 hours of divorce education, providing information on the effects of divorce on children.  The classes would also teach “research-based” communication and other relationship skills that help strengthen marriage.   The Coalition for Divorce Reform bases this approach on recent studies that find that about one-third of divorcing couples report an interest in reconciliation.

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The Great Banana Wars: Marital Conflict, Communication, and Dispute Resolution

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