My blog is meant to inform but its primary purpose is not to be informative. It is about the law but it is not solely about the law but also about those places the law does not go. The law is the platform from which I dive. My blog is about my opinions but is not primarily about my opinions since I often temper these to the subject matter on hand, not to mention the imagined audience. Quite often when I open a subject which is related to the law for discussion, I find myself in a place I never meant to be, or to go, as if the subject takes on a life of its own. I write articles based on what I do for a living, and I am a family lawyer, but of course that is not all I am. I find that when I engage with a subject, and use writing to express my thoughts, that quite often the journey is more interesting than the end and that what I thought I was writing about is not what I wrote about at all. This seems to me to be a metaphor for life. I write, therefore, to throw some light into the dark, to increase my understanding and by extension hopefully, other people’s understanding of what often seems incomprehensible, to enliven the dull so my spirit does not sag and to throw some humour at what is often deeply sad so that I can, or maybe, dare I say hopefully, “we”, can gain perspective. I doubt I succeed but the effort is honest.
Friday, September 24, 2010
Now the magic is in the meaning of the word and what it signifies. Whenever we hear the word “negotiation” in the context of a war zone or a crisis, we breathe a sigh of relief. Time has been bought, we are back from the brink and the hope of peace beckons. Yet, when we consider marital breakdown, so many of us think only in terms of court, rather than negotiation. We need to reflect on that. Our lives would be unimaginable without negotiation. It informs our every day and all our relationships, business, politics, state and world affairs. There is no part of life on this planet which is not affected by negotiation. It is, therefore, extremely important that we understand the true meaning of this word, various styles of negotiations as well as the many forms it takes.
Negotiation is a dialogue intended to resolve disputes, a bargaining tool to gain advantage, a mechanism to produce an agreement, a blueprint for action or a process to craft outcomes. It can be all of the above or just some of the above. When we think about negotiation most of us think in terms of two opposite sides jockeying for advantage. As a lawyer, I would generally think of negotiation in terms of one side looking for a bigger slice of the pie over the other i.e., hard line bargaining. We refer to that as distributive or adversarial bargaining and it is generally the way that solicitors and barristers negotiate. Like everything, it has its place and is a very useful tool at times but that is all it is, a tool. Like most tools, it is ill suited to certain circumstances, people and situations. Many of us understand negotiation only in terms of distributive bargaining and are not aware of any other method of negotiation. There are many different ways and styles of negotiation. Another approach to that of distributive bargaining with which we are probably familiar, might be to hammer out an arrangement in the best interests of the parties i.e. take a more holistic approach and look on agreements from the point of view of creating optimum gain rather than maximum gain.
In many countries ordinary people are master negotiators though they may have little theory informing their practice. Generally, they are masters of distributive bargaining. I am thinking, for example, of many Arabic , Indian and Asian cultures where bargaining is a way of life. We are all pretty familiar with this way of bargaining and most of us tend to try and conduct our relationships in a distributive bargaining way. We may employ various strategies to that end but essentially we are jockeying for advantage either in our employment or at home. Distributive or adversarial bargaining is generally ill-suited as a resolution tool for personal relationships. Perhaps it is more than time that we import a more creative theory of negotiation into our everyday lives especially when dealing with relationships. How might we do this?
We might start by looking at problems as opportunities i.e., opportunities to create. We might, accordingly, agree to only accept creative outcomes for any problem, situation, circumstance or crisis. To do that we must exercise understanding. We must spend time understanding the nature of the problem in all its myriad detail and we must take time to understand ourselves as we approach this problem. What emotional baggage are we bringing to this, how is our personality informing this situation? Emotion enters into the negotiation process in a number of ways. For example, whether or not we like the person with whom we are in dialogue, what baggage we are bringing into the discussion on a particular day, for example, a stressful family or business interaction prior to the negotiation will affect the way we conduct the negotiation. Unintentional emotional triggers arising during the negotiation will also impact severely on us and unless we have a degree of self awareness such triggers will adversely affect the discussions and we will be none the wiser as to what exactly happened. Being sensitive to our own emotional baggage is very important but being sensitive to that of the other person/s is also vital. If we are paying close attention we can pick that up as we go along and doing some research prior to the negotiation may also help us to be aware of issues that might arise. Understanding the other person means a great deal of listening, clarificatory questions and feedback. Our own negative emotions can cloud our ability to hear and to be creative as well as colouring our attitude to outcomes. Positive emotions can make us confident and insightful creating more likelihood of positive outcomes. Knowing all this, could we possibly conduct negotiations ourselves for ourselves? I believe we can and some do. Some of us have a natural ability in this area but it is important for all of us to understand that with awareness and understanding all of us can learn how to do this. We need to learn how to do it and in small ways, we can practice it easily and occasionally bring it off by, for example, using relationship issues such as “who does the cooking” as an opportunity for practising such techniques. However, when it comes to major issues like separation or marital breakdown, our emotional baggage may not be so easily overcome so as to enable us to dialogue effectively. We might at that point seek the help of a mediator or a collaborative lawyer to assist us in doing this work.
When we negotiate with someone close to us, it is helpful to think carefully about the person we are negotiating with and not just concentrate on the issues to be discussed. What I am about to say is not the rambling of a tree hugger but rather a very carefully thought out way of helping us to get into the right frame of mind to negotiate. In order to enable us to be open to that person we might focus on gestures or actions that we can look back on in our relationship with that person for which we are thankful. In that mood of thankfulness we might then reflect on our overall goal in the coming negotiation. Without the capacity to extend gestures to the other and without the capacity to appreciate gestures from them, successful negotiation, particularly when it concerns relationship issues, will be well nigh impossible. When we reflect on our overall goal we can then think about how we are going to approach matters or another way of putting this would be that we can strategise. In the mindset of thankfulness and bearing in mind the overall goal, we can look at the issues from the perspective of trade off and/or creating value. We walk a mile in the other person’s shoes and we ask ourselves what will they value, what is important to them and this enables us explore the various options available to us. Then we need to reflect on what is important to us. Only then are we ready to commence the negotiation. Remember that in this context we may call the negotiation, a conversation, such as “I have to talk to John about that” knowing full well that John will be running a mile from that conversation, however, it is, in fact, still a negotiation. If you can combine the above with a nice musing tone, and you need to practice this, plenty of questions and genuine openness, you are on a winner. It is not as easy as it sounds but it is not impossible either and the essentials are the same in any negotiation. Getting into the right frame of mind is three quarters of the way. If we commence negotiations from places of fear and anger then we have no hope of achieving solutions.
The advantage of mediators and collaborators is that they can do all of the above so much more easily because they have no personal stake in the outcome. It is the personal stuff that makes it hard and that is why few of us can manage negotiation for ourselves. Essentially, however, what I have described above is the process of mediation or negotiation and it is also the bones of a collaborative negotiation which is what collaborative family law is all about. When people think about the word “negotiation” they think of something which is almost magical. Secluded armed gun men are talked out into the open and contained by the process of negotiation. Suicides are talked down from the brink, hostages are released, centuries of intransigence are overcome. No wonder I was delighted by that word as a small girl. Did I sense the power of negotiation? Who knows but I know that I also wanted to be a magician. There is a connection between the two. Now I am working with the magic myself.
Tuesday, September 7, 2010
One life event which many employees go through and which will impact on their productivity severely is marital breakdown. Personal or family health issues, death of family members, financial stresses, child issues and moving house are among the other predictable life issues which will occur. Employers can offer help and guidance in all of these situations without prying unduly and without taking over someone’s decision making capacities. By having information days and/or evenings for employees in general which deal with all of the above, employers demonstrate a commitment to the wellbeing of their staff. There are a number of ways that information can be packaged and delivered to staff depending on the company circumstances. One is to have an information evening once a month where different topics are scheduled enabling staff to hear about a number of important issues that will arise for them or their colleagues at some point in their working lives. Such meetings can be scheduled for lunch time or for early evening. Another way is to ensure that HR staff are fully conversant with all of the issues and research and have all the information to hand that staff may require. If there is an in house magazine or news letter then a series of articles on various topics in an informed way might be another way of getting information out there. Costs can be kept to a minimum and platforms can be shared by a number of professionals from different firms and backgrounds ensuring that it is about information and not advertising.
Divorce is ranked as the second most stressful event that a person can experience in their lifetime, second only to the death of a spouse. Divorce rates, not too surprisingly, tend to be at their highest in populated areas. Since industries and large employers tend to situate themselves in populated areas, the issue of marital breakdown is one that should concern employers. As well as the, understandable, trauma of the person experiencing the divorce first hand, it is important to reflect on the fact that divorce will impact on everyone who comes within its radius. For example, it is important to be aware that the effects of divorce-related stress are multiplied in the employee by the echo of that stress in his/her children and extended family. Also, of course, as well as an employee going through a separation/divorce, the children of divorcing parents can also be employees as can extended family all of whom will be affected. The effects of divorce as well as short term productivity impairment can also be long term depression , poor health, and in some cases suicide or premature death. In addition, employers need to be aware from a health and safety point of view as well as just staff care, of the increased risk of substance abuse before, during and after divorce. Some studies suggest that men are more detrimentally affected by divorce than women. My own experience as a family law specialist dealing over the years with men and women would be that women go through the emotional trauma of the separation while they are going through it legally and financially and that men defer the emotional aspects of it. Generally, I think men are better are compartmentalising emotional matters than women. I cannot offer an explanation for this but men seem to be able to shut things off more effectively. Over the years I have noticed this. I have often envied this capacity. However, I think, that like everything it has a good and bad side. By allowing their feelings to be part of the process of separating and divorcing women deal with their emotions at a time when their friends and family are available to help them process. Men, on the other hand, bottle up their feelings and get on with the business on hand. It is only after the event, sometimes years after the event, that the emotions will surface. Generally, because men are not used to discussing emotional or personal matters they will find it extremely difficult to enter into conversation about their circumstances with their friends. This difficulty is compounded by the fact that for people outside the situation it will be yesterday’s event and will not be present to their consciousness. Therefore, it is my experience and one that seems to be borne out by the studies, that men continue to bottle up their emotions until they result in ill health or depression. In the studies I have read, it is argued that the reason why men do worse than women in separation is the difference in how men and women interact in society. Male friendships tend to be about someone to hang around with and women’s friendships tend to be about sharing feelings. In Irish society, man men, in particular, will base their social interactions around their marriage that is socialising with other couples mostly at the instigation of their wives. As a result, when the marriage breaks down, men not only lose the company of their wives, they will also quite often lose practically their whole social network. In tandem with this, women will most often have custody of the children after the marriage breaks down so men lose their role within the family and quite often they have to completely alter the way they interact with their children as well. When you combine all this, your average divorced man is a pretty lonely, confused figure. Employers need to be very aware of all this as do work mates and indeed people experiencing divorce themselves first hand.
But apart from how recent research and experience can assist employers in dealing with employees compassionately, information can also be given to the employees to assist them in dealing with the reality of separation and divorce. I have found that being able to educate parents in what to expect from their children depending on their ages and what to watch out for is enormously helpful to them. Tips on parenting post separation are also hugely helpful to parents trying to cope with child issues arising and their own trauma at the same time. General talks on solicitors, who we are, what we do, what to expect and not to expect, what is the nature of your relationship with your solicitor and so forth are all very useful for people in sorting through that first very confused and confusing stage of marital breakdown. Talks on the different legal options available for couples separating can also be very informative and enlightening. There are now four distinct ways to deal with separation, separation by agreement but under the adversarial system, separation by collaboration, separation by mediation and separation by application to court. There are also some hybrids of these. Finding the right way for you is crucial and then matching that up with the right professional/s is a further skill and there is plenty of help to guide people in that.