Divorce: The Conflict Between Getting It Right and Getting It Done

By Lenard Marlow

The first was to create a theory to support the practice of divorce mediation. This was born of my belief that the early proponents of divorce mediation had failed to sit down and ask the basic questions that the founders of any new field should pose. The result was that they concluded that if the problem was that divorcing couples had turned to adversarial divorce proceedings, the solution was to provide them with a nonadversarial one, or at least a less adversarial one. As a result, though they considered divorce mediation to represent a repudiation of adversarial divorce proceedings, they unwittingly accepted and incorporated into their thinking, and therefore into their practices, the answers given to those questions by our adversarial legal system and, with it, literally all the assumptions and all the values that informed and gave support to them. Worse, they unwittingly adopted and were then held captive by the picture of the world of divorce subscribed to by our adversarial legal system.

• Language: English
• Publisher: Xlibris US
• Release date: Dec 15, 2017
• ISBN: 9781543458480

Lenard Marlow

A graduate of Colgate University and Columbia Law School, Lenard Marlow has spent most of his professional life working with divorcing husbands and wives, first as a divorce lawyer (he is a Fellow of the American Academy of Matrimonial Lawyers) and then, for more than thirty-five years, as a divorce mediator (he is a Past President of the New York State Council on Divorce Mediation). In addition to lecturing and putting on trainings throughout the United States, Europe and South America on the subject, he has written many books about divorce mediation, including The Two Roads To Divorce; Metaphors For Mediators, and Divorce Mediation: The Conflict Between Getting It Right and Getting It Done.

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To

John and Leslie

A picture held us captive. And we could not get outside it,

for it lay in our language and language seemed to repeat it to us inexorably.

Wittgenstein

TABLE OF CONTENTS

Introduction

Chapter 1 The Two Goals

Chapter 2 The Inevitable Conflict

Chapter 3 The Three Foundational Questions

Chapter 4 Our Pictures of the World of Divorce and of the

World Itself

Chapter 5 A Divorce Mediator’s Answer to the First Two

Foundational Questions

Chapter 6 The Problems That Divorcing Husbands And

Wives Come to Us With

Chapter 7 A New Story

Chapter 8 Making Informed, Intelligent Decisions

Chapter 9 Getting It Right

Chapter 10 The Application of Legal Rules

(Internal Critique—Part I)

Chapter 11 The Application of Legal Rules

(External Critique—Part 1)

Chapter 12 Internal Critique—Part II

Chapter 13 External Critique—Part II

Chapter 14 The Place and Function of

the Law in Divorce Mediation

Chapter 15 Getting It Right—Getting It Wrong

Chapter 16 The Copernican Revolution in the Law (Part I)

Chapter 17 The Copernican Revolution in the Law (Part II)

Chapter 18 The Copernican Revolution in the Law (Part III)

Chapter 18 The Copernican Revolution in the Law (Part IV)

Chapter 20 Conclusion

Chapter 21 Postscript

INTRODUCTION

I spent most of my professional life helping husbands and wives address the problems they found themselves faced with as a result of their decision to divorce, first as a divorce lawyer and then, for more than 35 years, as a divorce mediator. In this latter period, a great deal of my time was also devoted to two other things.

The first was to create a theory to support the practice of divorce mediation. This was born of my belief that the early proponents of divorce mediation had failed to sit down and ask the basic questions that the founders of any new field should pose. The result was that they concluded that if the problem was that divorcing couples had turned to adversarial divorce proceedings, the solution was to provide them with a non-adversarial one, or at least a less adversarial one. As a result, though they considered divorce mediation to represent a repudiation of adversarial divorce proceedings, they unwittingly accepted and incorporated into their thinking, and therefore into their practices, the answers given to those questions by our adversarial legal system and, with it, literally all of the assumptions and all of the values which informed and gave support to them. Worse, they unwittingly adopted, and were then held captive by, the picture of the world of divorce subscribed to by our adversarial legal system.

I first gave expression to this theory in Divorce Mediation: A Practice in Search of a Theory, and this present book was intended to represent the culmination of that effort. In addition to enabling me to extend certain arguments that I had previously made, it was also to afford me the opportunity to address an important issue that I had never really addressed before. That is the inevitable conflict that divorcing husbands and wives will experience, whether they turn to divorce mediation or to an adversarial divorce proceeding, between their desire to get it right and their desire to get it done.

My second goal, which was related to the first, was to change the terms of the debate as it related to divorce mediation. Although our adversarial legal system and the divorce lawyers who were its agents had not been among its early proponents, they were the ones who defined the terms of the debate when it came to divorce mediation, which necessarily meant that it reflected their assumptions and their values. Thus, divorce mediation came to be viewed simply as an alternative means of dispute resolution—just a different road to get to the same place. I argued that this was a serious mistake. Divorce mediation was not just a different road to get to the same place. It was a different road to get to a very different place. More to the point, it was based on a very different set of assumptions and values.

Long before I ever came across Wittgenstein’s famous saying about a picture holding us captive, I understood that, since our characterizations (what I refer to as stories, what Wittgenstein referred to as pictures) are of our own making and not, like the sun, the moon and the stars, aspects of first order reality, there could be more than one. Thus, to make that point, in book after book I contrasted the picture of the world of divorce subscribed to by a divorce lawyer with that subscribed to by a divorce mediator to show how those pictures necessarily affected their respective attitudes toward certain issues which came up in the course of their work—in the case of this book, the inevitably competing goals of getting it right and getting it done.

Similarly, that same understanding made me realize that our characterizations could not stand on their own. Rather, they had to be supported. The means that we employed for that purpose was the use of metaphors and in keeping with that, one of my books was entitled Metaphor For Mediators: Constructing a New Picture of the World of Divorce. In the case of our adversarial legal system, and the picture of the world of divorce it subscribed to, the two principal metaphors it employed were the parties’ legal rights and their conflicting interests and it was to those that I principally directed my attention.

Nevertheless, my approach to these two metaphors was very different. Thus, when it came to the first, I never suggested that the law was not important if the two of them turned to divorce mediation rather than to an adversarial divorce proceeding, and there were chapters in three of my books with the title The Place and Function of Legal Information in Divorce Mediation. Rather, my complaint was that our adversarial legal system inflated the importance of the law by placing it at the center of its picture of the world of divorce and pointed out that husbands and wives had been quite capable of making the decisions in their lives in the past (while they were married) without resorting to the law. In short, the law might be one thing that the two of them could look to. But it wasn’t the only thing.

The issue when it came to the parties’ conflicting interests was a little different. There the question was not whether the parties needed information about the law. It was how they were going to get it. As far as our adversarial legal system was concerned, they were to get it in the same way they would have had they turned to an adversarial divorce proceeding—from their own separate attorneys—and there was one bar association opinion after another proscribing dual representation (one lawyer meeting with both of the parties) in divorce mediation.

When it came to this book and the issue of the parties’ legal rights, I initially advanced a very limited argument. The picture of the world of divorce that our adversarial legal system subscribed to maintained, first, that the parties must be in a position to make informed, intelligent decisions and, second, that they couldn’t do that unless they knew what their legal rights were. Moreover, that was accepted as being so self-evident that it didn’t needed any explanation let alone defense. I argued that there was absolutely no basis for this insistence and that the only reason why we couldn’t see this was that we were unable to free ourselves from our adversarial legal system’s picture of the world of divorce that held us captive.

When it came to the issue of the parties conflicting interests, my initial effort was also a rather limited one. That was because I felt that I had already said all that had to be said on the subject in a chapter in a previous book of mine, Divorce Mediation: A New Vision of the Law, entitled "Do Divorcing Husbands and Wives Have Conflicting Interests?" Thus, my original intention was to limit my discussion to a critique of the various bar association opinions proscribing dual representation.

That is where the matter stood when I got through with the first draft of the book. I then put it aside to work on another book that I have since published and did not return to it for some considerable time. The only change that I made was to take the quote of Wittgenstein’s, which I had originally buried in an endnote, and move it to the front of the book. As it turned out, that was a critical move. When I eventually went back to the manuscript, and started to reread it, I found that I was now viewing the book through the lens of Wittgenstein’s insight.

The import of this first hit me when I was rereading Chapter 14 dealing with the law. As I said, I never suggested that the law was not important if the parties turned to divorce mediation. On the contrary, i would have considered that to be irresponsible. After all, if the law was part of the world in which we lived, how could it not be important? But as I came to realize, I had never really indicated why it was important and referring to it as legal information was just a distinction without a difference. In short, the fact that, after all of this time, I had still not been able to indicate just why the law was important was because I was still held captive by our adversarial legal system’s picture of the world of divorce to a far greater extent than I realized.

Ironically, this realization was all that I needed. I now had the answer. The law was not important, as our adversarial legal system’s picture of the world of divorce suggested, because it represented the parties’ legal rights, (Since, in the adversarial world of divorce, one person’s gain was another person’s loss, it would have been just as accurate to say that it represented the parties’ legal penalties.) Rather, it was important because it represented the framework within which the parties’ discussions would take place. They hadn’t needed such a framework in their marriage. Their common sense and the considerations that were important to them had been sufficient to enable them to make the important decisions in their lives. But they weren’t going to be sufficient in their divorce, which is why they would need such a framework now.

That was why the law was important. Not because, as a divorce lawyer believed, it would provide them with the right answers to their questions and solutions to their problems. But because they couldn’t agree what the right answers and solutions were and because, for better or worse, the law was the default position in that case. But that still left the question of how the two of them were going to obtain information about the law. In terms of the picture of the world of divorce which I argued should inform our understanding, they should get that information together, from the same lawyer, rather than separately, from two different lawyers. This became even more critical if we saw the law as representing the framework that the parties were to look to in making the decisions in their divorce. Perhaps it might make sense to suggest that they should get that information from separate lawyers if the law was to be used as a weapon in an adversarial legal proceeding, where the object was simply to get as much as you could and to give as little as you had to. But that made no sense if they turned to divorce mediation and used it, instead, as the framework that the two of them would look to in order to make the decisions in their divorce if they were unable to make them on some other basis. Be that as it may, that brought me face to face with our adversarial legal system’s most sacred cow, what it referred to as the parties’ conflicting interests.

As I said, because I felt that I had already said everything that needed to be said in answer to this, my original intention had been to include a very limited response which would consist of a review and critique of the various bar association opinions dealing with the issue of dual representation, restricting a lawyer’s ability to do this. However, when I picked up the book again, and went back to the argument that I had begun months earlier, I was even more forcefully brought face to face with the full weight of Wittgenstein’s insight, so much so that I felt that he was smiling over my shoulder. My whole purpose, as I said, had been to change the terms of the debate as they had been defined by our adversarial legal system. If that was the case, why was I granting the adversarial world of divorce the weapons of its choice by allowing it to define the terms of that debate when it came to the issue of dual representation in keeping with its picture of world of divorce, by posing the question as an ethical one, rather than accepting, in keeping with the picture of the world of divorce that I was advancing, that it was simply a practical one? That was more than allowing our adversarial legal system to define the terms of the debate. It was allowing it to win that debate. The result was that, instead of going back and simply revising the initial draft of the book, as had been my original intention, I went back and completely re-wrote the second half of the book, several times.

This brings me to the last thing that must be said by way of introduction. This book is aimed at the academic legal community. That being the case, it was necessary that the statements I made be supported by appropriate citations of authority. When I prepared the original draft of the book, I began to do that, and when I went back to revise the book, it was my intention to complete them. That was not the problem. The problem was that when I went back to the original draft and began to revise and re–write it in light of Wittgenstein’s insight, which now dominated my thinking, those citations of authority took on a different meaning. I couldn’t help but see them as being part of the picture of the world of divorce that was holding me captive. Let me explain.

This book gives expression to a particular picture of the world of divorce, one completely at variance with the picture of the world of divorce subscribed to by our adversarial legal system. But unlike a divorce lawyer, I cannot give any citation of authority for the picture I am advancing. To be sure, I think that it is a far more accurate and appropriate picture of the world of divorce than that subscribed to by our adversarial legal system. Be that as it may, like all such pictures, it has no independent existence. How could it when it is simply the free creation of my mind?

The result was that I became increasingly uncomfortable adding additional citations of authority. As was the case with the bar association opinions dealing with dual representation, the dice were already loaded against me. The terms of the debate were dictated by the way the question had been posed. As I said, my objective was to redefine the terms of the debate. But I wasn’t going to do that by constantly adding citations of authority that reinforced the very terms of the debate that I was trying to change. Thus, as you will find, when I went back to the endnotes, there came a point when I just stopped completing them.

CHAPTER 1

The Two Goals

It is generally accepted that, in terms of helping divorcing husbands and wives conclude an agreement between themselves, there are two equally important goals. Those goals are to get it right and to get it done. Moreover, this is true whether the two of them turn to divorce lawyers or to a divorce mediator. Thus, it would be no answer for a divorce mediator to excuse his failure to get it right by saying that his only interest was in getting it done. Similarly, it would be no answer for a divorce lawyer to excuse his failure to get it done by saying that his only interest was in getting it right. Since both of those goals are important to the parties, anyone assisting them must keep both of them in mind. At least that is the conventional wisdom in the field.

This book will take exception to this conventional wisdom. More specifically, it will take exception to the assumptions upon which it is based. In the case of a divorce lawyer, those assumptions are grounded in what I will refer to as a divorce lawyer’s picture of the world of divorce which sees the problems that divorcing husbands and wives are faced with as being primarily legal problems that simply have certain personal implications. That being the case, a divorce lawyer will see his principal goal to be to get it right.

A divorce mediator’s assumptions, on the other hand, are grounded in a different picture of the world of divorce, one which sees the problems that divorcing husbands and wives are faced with as being primarily personal problems, born of a personal life crisis, that simply have certain legal implications. Based on those assumptions, I will argue that a divorce mediator should see his principal goal to be to get it done. But I will go beyond that.

I will argue that it is in the very nature of an adversarial divorce proceeding to elevate the goal of getting it right to such an absolute as to inevitably reduce the goal of getting it done to being all but irrelevant. In answer to this, I will argue, first, that divorce mediation has unwittingly accepted the priority that divorce lawyers have assigned to getting it right over getting it done and, in doing that, has allowed our adversarial legal system to define the terms of the debate and, second, that divorce mediation should decide between these necessarily competing goals in terms of its own understanding of a divorcing husband’s and wife’s problem and, if it did that, it would see that its first obligation should be to get it done.

But I will go further. A divorce lawyer does more than insist that it is necessary to get it right. Based on his understanding of a divorcing husband’s and wife’s problems as being legal ones, he believes that there is a fixed procedure that they must employ for that purpose. That procedure is to look to the law for the solution to their problems and the answers to their questions. Just as a mathematician would look to the rules of mathematics to solve a mathematical problem or answer a mathematical question that the two of them had, a divorce lawyer should look to the rules provided by the law to solve any legal problems or answer any legal questions they have. By parity of reason, he insists that the ultimate agreement they conclude must be judged by a particular yardstick, namely, a legal one. But a divorce lawyer goes further. He also insists upon a particular method of validation that they must employ for that purpose. The measuring must be done by two lawyers rather than one.

Based on his own understanding of the problems that husbands and wives are faced with at the time of their divorce, a divorce mediator would look at the situation very differently. To begin with, he would not understand why they should not deal with those problems and answer those questions on the same basis they did in their marriage, namely, on the basis of their own good judgment and the personal considerations that are important to them—what I will refer to as their common sense. Moreover, he would not understand why, if there were legal implications in the problems they were faced with, they would not go off together and pose their questions to the same lawyer, just as they did in their marriage. In the terms that I will put it, unlike a divorce lawyer, a divorce mediator would not change his value system in relation to the two of them just because they have decided to divorce.

Once again, there is more to it. To sustain a divorce lawyer’s Cartesian faith in legal rules (a divorce lawyer’s faith that the application of those rules will alone leave divorcing husbands and wives with the right solutions to their problems and answers to their questions), as is the case with the application of the rules of mathematics, they would have to satisfy certain conditions. They would have to be universal, timeless, certain and necessary. But the legal rules that divorce lawyers insist upon do not and could not meet even one of those requirements, let alone all of them. How could they when they are simply an arbitrary set of rules that have little, if anything, to do with the lives of the husbands and wives to whom they will be applied? How could they when they vary from state to state? How could they when they are even different in the same state over time?

Unfortunately, that is still not the end of it. It is not enough that the application of legal rules will not leave divorcing husbands and wives who look to them with the right answer. To add insult to injury, they will not leave them with any answer. Ironically, our adversarial legal system acknowledges this. As every law student learns the first week of law school, excepting those few instances where the answer is the same for everyone, all that the application of legal rules will leave them with is a range of possible answers. That would be a problem in and of itself. What makes it worse is the fact that it is in the very nature of an adversarial legal system to expand that range of possible answers. If we add to that our adversarial legal system’s method of validation (its insistence that the measuring must be done by two lawyers rather than one), the answers that the two of them will come away with will invariably be so far apart that they will literally not speak to one another.

How does our adversarial legal system and, more particularly, the divorce lawyers who are its agents, deal with this problem? They don’t. To be more accurate, they don’t even acknowledge that there is a problem here. Instead, they do what our legal system has taught them to do, which is to engage in legal legerdemain. They invoke lofty abstractions and thereby change the subject. Thus, a divorce lawyer will not talk about getting it right, whatever that means. Rather, he will characterize the procedure he will undertake on their behalf as if it was a quasi-religious undertaking the object of which is to secure their God given legal rights. Casting it in those terms will enable him to avoid having to get into how long the crusade in question will take and how much it will cost, not only financially but emotionally as well.

I will argue that divorcing husbands and wives deserve better than they have been given by our adversarial legal system. What they thought they were getting was a rational procedure that would enable them to address and successfully resolve the serious problems with which they found themselves faced as a result of their decision to divorce. What they were given instead was little more than a charade whose only effect was to take what was already a tragedy in their (and their children’s) lives and turn it into a nightmare. Moreover, the divorce lawyers to whom they had been encouraged to turn for help made no excuses for this. Rather, to add insult to injury, they talked and acted as if they were doing God’s work.

Is it possible for our adversarial legal system to properly serve the needs of divorcing husbands and wives—in the terms that I will put it, if it is not possible to get it right, whatever that means, to at least get it done? The answer is yes, but for it to do that it will first have to question its three most sacrosanct principles. The first is the one which, in the name of getting it right, causes it to sanctify the undertaking by characterizing it as a holy crusade, the object of which is to secure their legal rights. The second is the one that maintains that it is not possible for the two of them to make what a divorce lawyer refers to as an informed, intelligent decision unless they know what would happen were they to leave the determination to a court of law rather than to decide the matter on their own—which, when all is said and done, is what knowing what their legal rights are boils down to. The third is its insistence, based on what it characterizes as the parties’ conflicting interests, that in order to obtain the information they need, they must each consult with their own separate lawyer.

Toward that end, I will call for what I will refer to as a Copernican revolution in the law. There is only one way that turning to the law for guidance will be of help to divorcing husbands and wives who look to it for solutions to their problems and answers to their questions. That is if the range of possible answers that the law provides is a much narrower one than is presently the case. For that to happen, however, the legislature that enacts our laws and the courts that interpret and apply them will have to be much more mindful than they now are of whether their enactments and decisions tend to narrow the range of possible answers or, on the contrary, tend to expand it. In other words, they will have to ask themselves whether their enactments and decisions will be of more benefit to divorce lawyers in leaving them with an instrument to make a case for their clients than they will be to the husbands and wives who look to them for solutions to their problems and answers to their questions. In the terms that I will put it, they will have to come to view the law as an instrument to get it done rather than as an instrument to get it right.

But the Copernican revolution in the law that I will call for goes beyond that. It is not sufficient that the law provides clearer answers to divorcing husbands and wives who look to it for guidance. For those answers to be of help, they must be the same answers and not, as is presently the case, different answers that are so far apart that they literally do not speak to one another. But to get the same answers, divorcing husbands and wives are going to have to go together to the same lawyer to get them, not to two separate lawyers. That, of course, brings us face to face with our adversarial legal system’s most sacred cow, what it refers to as the parties’ conflicting interests.

I do not want to anticipate my answer to this objection. Rather, for the time being I will just acknowledge that it is part of my burden to make the argument here, as it is to make the other arguments that I have outlined above. However, I will just add one thing.

I started out by saying that a divorce mediator’s assumptions are grounded in a different picture of the world of divorce than a divorce lawyer’s assumptions are. That is not true. That is because, as I said in the Introduction, since the early proponents of divorce mediation failed to sit down and ask the basic questions they should have, they unwittingly accepted and incorporated into their thinking and into their practices all of the assumptions implicit in the picture of the world of divorce subscribed to by our adversarial legal system. Thus, when I talk about the picture of the world of divorce that divorce mediators subscribe to, it must be understood that I am talking about the picture of the world of divorce that I am arguing they should subscribe to, not the one that they presently do. In short, I am only speaking for myself.

CHAPTER 2

The Inevitable Conflict

As divorcing husbands and wives quickly come to realize, they will inevitably be faced with a difficult choice. As our adversarial legal system would characterize it, they will find themselves in the grips of a conflict, except that in this case that conflict will not be between the two of them (an external conflict). It will be one which they will each have with themselves (an internal conflict). Part of them will want to get it right; another part of them will want to get it done. To hold out to get it right may mean never to get it done. However, just to get it done may mean to abandon the hope of ever getting it right. That will be their inevitable conflict and every divorcing husband and wife experiences it.

For a divorce lawyer, there can be no choice when it comes to these conflicting goals. His (or her) first and foremost obligation is to get it right. After all, that is what he has been retained to do—to be his client’s advocate and to enter the lists in the service of his or her cause. Thus, a divorce lawyer will not be willing to settle the matter (get it done) unless and until he has first exhausted every avenue in his pursuit to get it right. He would consider it a dereliction of his duty, and a disservice to his client, were he to do otherwise. In fact, that will be a divorce lawyer’s principal criticism of divorce mediation. As he would say, a divorce mediator is only interested in getting it done, not in getting it right.

What has been divorce mediation’s response to this indictment? It has been to deny the charge. Thus, a divorce mediator would insist that he is just as interested in getting it right as is a divorce lawyer—in a divorce lawyer’s terms, to vouchsafe the parties’ legal rights and to leave them with an agreement that is fair and equitable. A divorce mediator is just going to employ a non-adversarial procedure rather than an adversarial procedure to accomplish this.

It will be the central thesis of this book that this is the wrong answer. It is wrong because it inappropriately allows our adversarial legal system to define the terms of the debate. Without realizing it, in accepting the validity of a divorce lawyer’s choice when it comes to these two conflicting goals, and in answering a divorce lawyer’s criticism of mediation in the manner that it does, divorce mediation unwittingly incorporates into its thinking, and therefore into its practice,