For many couples sheltering-in-place was an opportunity to grow closer. Yet for others, it was hell. Old conflicts surfaced and old wounds reopened until the relationship reached a breaking point. On this podcast we talk with attorney Pauline Tesler, a pioneer of Collaborative Divorce. an approach that helps families get through this challenging process while keeping their sense of home and self intact.
Collaborative Divorce is a growing movement to address a family’s psychological and financial needs while providing many layers of support. Pauline has trained thousands of attorneys in the U.S. around the world in this process, changing divorce from a harsh adversarial experience to one that supports the delicate process of restructuring lives. For this groundbreaking work, the American Bar Association gave her its first “Lawyer as Problem Solver” award.
Pauline practices family law in northern California and is the founder of the Integrative Law Institute—applying collaborative techniques across the board from business and partnership law to social justice issues. Audio file and full transcript below.
Pauline, thanks for joining us today.
It’s really good to be with you.
I want to start with this question: Why did you expect to see a spike in divorce rates after the pandemic?
Well, it’s really not hard to understand. People have been having tensions in their marriage that they managed to live with one way or another before the lockdown—spending a lot of time outside the house, conducting affairs with other people, sometimes throwing themselves into projects at the office. Now none of those things are possible, and so people are forced to be together, and the tension just escalates.
And there are also people who had been planning to separate from their spouses, and were just on the verge of doing so, and suddenly they can’t.
In addition, a lot of people are out of work and we know that scarce resources are a huge escalating factor in tension between spouses. So it’s a perfect storm.
How has China, the first country to emerge from the pandemic, fared in terms of divorce?
That’s kind of sobering news. As China gradually loosened the lockdown restrictions, they’ve seen unprecedented spikes in divorce rates. In one major city, there were lines stretching around the block of people who wanted to get into the courthouse and file for divorce. In short, we saw a 25 percent spike, just in the first week or two, as restrictions were loosened.
And you’re concerned that this will happen here?
The U.S. courts have been totally shut down since each state initiated the lockdown. Once they reopen, we predict a surge of divorce filings. Since there’s a backlog of cases that are already waiting for trial, it could be well over six months and as much as a year or more before divorcing couples can get in front of a judge.
So there’s a big surprise in store for people who are uncoupling now?
Absolutely, if they’re thinking of handling their divorces that way. But, of course, I don’t think any sensible person considering divorce would want to be in the court system. Collaborative Divorce is what I consider as the gold standard in terms of out-of-court conflict resolution.
Mediation is appropriate for couples who haven’t been married that long and don’t have that many financial or parenting issues, and complex emotions to resolve. But for those who have had longer marriages and have more complicated situations, collaborative divorce is the way to go. There’s no question about it.
Traditional lawyers now have to deal with the inability to run into court and see what the judge would do. They’re discovering that if you encourage your clients to sit down and take a breath and have some appreciation for the fears the other spouse is experiencing, we might be able to work something out.
So I think we’re going to see some long-term changes. Including a long overdue normalizing of collaborative divorce as the way people first consider how to resolve their problems.
I’d like you to describe this process for our listeners who may not be familiar with collaborative divorce. What kind of a team is involved and how does it work?
Collaborative divorce was the inspiration of one lawyer in Minnesota way back in 1990, who declared unilateral disarmament. He said, “I’m not going to go to court anymore.” The other divorce lawyers in the community really liked him so they just sat at the table longer and talked about the issues instead of running to a judge for a decision.
California is the mothership for the interdisciplinary team collaborative divorce model which I refer to as the gold standard. And the way it works is this: Everybody signs a formal agreement that they will not go to court during the collaborative process. If it turns out that that’s not working well and the clients want to go to divorce court, they can — but the collaborative lawyers and other professionals on the team cannot go with them. We are there only to help them reach solutions that work for them voluntarily, consensually, in this new conflict resolution mode.
The members of the team are not just lawyers. If you think about it, lawyers don’t learn in law school how to deal with the emotional side of divorce. So we also involve mental health professionals who work with the couple on communication skills and on developing a parenting plan for their children.
In the model that I think works best, there is a mental health professional working in a coaching capacity with each of the divorcing spouses and there is a child development specialist who acts as the voice of the children and who also explains to the children what is happening. Children are the ones left-out in a conventional divorce. Nobody talks to them.
There’s one more professional on the team, too. The neutral advisor who brings in a financial planning and analysis orientation to what otherwise is a war of dueling experts.
Thank you for that good description of what the team does. Can you tell me a story that shows how the collaborative divorce team helps people when their sense of home is falling apart?
I want to tell you a story where the collaborative divorce model was a life saver, a family saver and a home saver.
This was a couple who lived in the South Bay. The man was a physician and the wife was a homemaker who had stayed at home raising their daughter who was an older teenager. The wife was extremely frightened about the financial side of things. She didn’t think that she’d be able to create a home for herself, even though that was vitally important for her. She was interested in interior design but didn’t have competitive skills because she’d been out of the market for so long. We came up with. an arrangement that allowed her to get training as an interior designer so that by the time we got toward the end of the divorce process, she was really confident not only that she would be able to make a living, but also that she could make a beautiful home for herself when she had to leave the family residence.
But much more important is what happened next. Their daughter became extremely depressed, not simply because of the divorce. She began abusing drugs and she got pregnant.
A child specialist on the team immediately went into gear to get emergency resources to help this girl. But then the coaches started having conversations with the parents about how they were going to co-parent her in two separate households. We did not hear from the family for a while; the divorce process was suspended while every one was paying attention to the daughter’s emergency. And when we next heard from the couple, we learned was that they had decided to reconcile. That was about six years ago and they are still married.
That’s an extraordinary story. So the whole process of collaboration can lead anywhere.
That’s a really good way to put it. When a person makes an appointment with a lawyer, they think that what they need is a divorce because things have got more stressful than they can bear. My first mentor in the family law field, a wonderful Hungarian woman who was married to a psychiatrist, said to me, “Pauline, you think because they’re in your office, they need a divorce? Look, they may need to see their minister, a rabbi. They may need to see an accountant or go into counseling or they may even just need a vacation. So don’t be so hasty to comply!”
I really took that to heart when I was a conventional lawyer. And it is the essence of my collaborative process now. We make no assumptions about what the couple or the individual spouses do or don’t need from us. We listen. Traditional lawyers aren’t taught to do that in law school. They’re taught to keep their focus entirely on what they want to achieve, and if they’re hearing something that doesn’t advance that goal, they just don’t pay attention.
So if people opt for a traditional adversarial divorce, it’s just like pouring accelerant on the flames.
It always is. Because what happens next is this: Angry and frightened marital partners go to their separate corners with their separate advocates. The advocates fuel the client’s worst fears and most anguished sorrows. Lawyers are very quick by temperament to jump on the white horse. In the old model, I would see my client as Snow White and view your client as Hitler. Or on another day, it’s Prince Charming vs. the Wicked Witch of the West. These positions just get more and more extreme as a lawyer prepares a client for trial.
So it becomes this archetypal battle of good and evil and the couple gets lost completely.
That is absolutely it in a nutshell. We simply don’t do that in the collaborative process. Having mental health professionals on the team is a learning experience for the lawyers. We actually discover how to do conflict resolution instead of going to war. In the collaborative process, the entire team debriefs and if something didn’t go well, we figure out what could have been done more skillfully. And then we try to do it better the next time. It’s a restorative process for everyone.
As the pandemic unfolds there are going be a series of bumps in the road. Nobody knows really what they have financially to work with anymore in a divorce. Nobody knows where they’re going to be emotionally because the entire culture is changing. We’re in a position that I think is really unprecedented for the divorcing couple. And it’s a very hard time to lose a home.
I think you’ve put your finger on something really profound. When we just say the word “divorce,” the house is the most visible symbol of impending loss. It’s also absolutely predictable that a person in that situation is going to feel that the house is a life preserver— the only thing keeping them sane, keeping them grounded. It’s not an exaggeration to say their emotional state is, “If I lose the house, too, I will die.” The challenge is to give enormous respect to that emotional reality — the house as the repository of all one’s dreams and memories.
So there is a difference between a traditional divorce, which in litigation terms considers the house as a financial asset, and a collaborative divorce, which understands that the house is everybody’s primary attachment.
That’s absolutely right. And if, in a traditional divorce, my client comes to me in that state of panic and says, “I’ve got to have the house, that’s my primary goal,” my job is to magnify that with a megaphone and say “She’s going to get that house!” Then I must do everything to make that happen.
In a collaborative divorce, we don’t start with objectives like that but with, “What are the facts here? What does this family’s income look like? What do the assets look like? What are the prospects for employment after the divorce?”
With typical middle-class families, if, let’s say the wife gets the house, she will get nothing else. She may not have long-term spousal support. She may have impaired employment options. If I try to tell her that as a traditional lawyer, I will get fired. My client will say to me, “Whose lawyer are you anyway?”
But in the collaborative process, we build from the facts. Then we look at goals, priorities, and interests. And finally, we brainstorm solutions. By the time we go through all of that, we’ve examined, “What would your life look like 10 years from now if you do get the house?” At this point, my clients often say, “Oh, it’s very sad, but I know I don’t want to be even poorer than I might be without the house. I want to have the opportunity to pull my life together financially for myself and the kids.”
I’m wondering if you can give me an example of a divorcing couple who collaborated beyond your wildest dreams.
One of the most remarkable stories involves a young couple with one child who was about three. The husband came to me — let’s call him John. At this point, his wife was a stay-at-home mom. She had had a career that she was just starting to build as a massage therapist, but she hadn’t been making much money.
John was having a skyrocketing career as a music producer, and his wife had been feeling really lost and left behind. He wasn’t paying a lot of attention to home because he was really excited about his career and she felt that he wasn’t an engaged parent. Eventually she did what people, unfortunately, often do in that situation. She began having an affair with somebody who was paying attention to her.
When John came to me to talking about getting a divorce, he was angry. But he also had the wisdom to recognize that this was the mother of his child and that if she didn’t do well, his child wasn’t going to do well. Less wise people get involved in wars about who’s the better parent, who’s going to get the child. But John immediately got into a more empathic frame of mind. He worked with me and with his wife’s lawyer to try to figure out a way that she could have an income stream and some self-esteem that would keep her from simply bouncing from one affair to the next. So he helped her start a business, a store where she would be selling exercise and health supplies.
She was excited and he was willing to put money into that project upfront before they had launched into their financial negotiations. By the time we got to the point of entering into a settlement agreement, the wife had found a new partner and was pregnant. She intended to marry this man after the divorce was final.
John could easily have gone into an emotional tailspin and everything we worked on could have been lost. But instead, he was supportive. His ex-wife gave birth. Her new husband was getting started in the music field so John gave him contacts and some help to develop his own career. And more importantly, John realized that the new baby was the brother of his own son. And so the two couples began exchanging both children in a shared parenting plan. What could have been a terribly confusing, and angry situation instead turned out to be a really supportive situation.
That’s a lovely story. I know you view collaborative law in its broadest possible terms. And I’m wondering if any of the tools in your collaborative tool kit might apply on a cultural level.
The underpinning of collaborative law is a restorative process. I’m thinking, for example, of the truth and reconciliation process in South Africa, which was truly astonishing. The apartheid system was so cruel and yet those who had been the oppressors were willing to listen to stories of how life had been for others under the heel of an apartheid system. If that can happen, then it seems to me that there’s hope for us here in America, and that we, too, can foster some authentic conversations between the different factions of our larger family.
The collaborative process teaches and depends upon a kind of deep listening, not just to what another is saying, but to the emotional frame from which those communications arise, from the fears and the hopes that are driving the conflict. What I think the collaborative process has to bring to the larger culture is the understanding that resolving conflict is a necessary human skill. We start with respect and the desire to understand what the other person is feeling, as well as thinking and saying.
Those skills are teachable. We’ve proven it in the legal profession, which was founded on not listening, on just fighting — and lawyers have been the leaders in developing this new restorative process.
I think the larger meaning of collaborative practice is that conflict resolution is a skill set that everyone needs to have, because conflict is present in every human life. If you understand conflict, correctly, truly, you realize it arises when the way things are being done isn’t working anymore. The status quo has to change in some major way. The conflict is the red flag waving that says, “Pay attention!”
Our natural human reaction is to get angry and start throwing stones across the conflict. What we have to do is you go into it, go toward it. To ask, Why aren’t things working and what can we change so that we could get along again?
Well, you’re drawing on neuropsychology, too, because what you’re talking about here is helping people move from the part of the brain that is locked in the “fight-or-flight” — the fear center of the brain — to a more empathetic, compassionate, open stance.
That’s how I teach conflict resolution to lawyers, at the Integrative Law Institute. My approach is based on our knowledge of the triune human brain. You’re right, when clients get angry and frightened in a divorce lawyer’s office, they are living in their reptilian brain, which is their survival center. The “fight or flight” portion of the brain says “Something is coming toward me that could kill me and I have got to either fight it and kill it or it’s going to kill me.”
Do we generally see more broken marriages in times of social change when that fight or flight instinct has been aroused?
Well, that’s I think what we were talking about to begin with — why we’re going to see a surge in divorces and why domestic violence is surging. People are frightened. They’re angry. They don’t know where to turn. And all security is gone. So everything looks like a threat.
The task in a well-run collaborative divorce is to help people come out of the process better able to lead their own lives and parent their children. And so we have to help them rise from the fear reactions of the reptilian brain, which biochemically make it impossible to think straight — to the limbic brain, which allows them to feel empathy and compassion for others which is the precondition for listening deeply. And then, finally, to engage the forward problem-solving thinking portion of the brain.
That’s beautifully put. I just want to clarify for our listeners that the triune brain refers to three different command centers. The oldest part of the brain — the reptilian fight or flight brain. The limbic brain, which is the emotional brain. And the cortex, which is the thinking, problem solving, integrating part of the brain.
Absolutely right. And we have all three at all times working in harmony when things are normal and we’re feeling comfortable and at ease and just going about our lives.. We’re able to think into the future, do cause and effect projections, problem-solving, come up with new ideas — the absolutely unique human edge, evolutionarily speaking.
So what I’m hearing is something pretty remarkable — that people who have the good sense or the good fortune, or both, to go through a collaborative divorce process are getting training — really basic training — in how to live.
That’s exactly it. What we’re doing, I guess you could say culturally, is a kind of remedial education in what conflict is and how to treat it as a constructive experience.
I’m reminded of something that Confucius said: “The stability of the home is the building block for the stability of the culture.”
That’s absolutely correct. Confucius put it in a cultural sense. My friend and colleague Jean Bolen has put it in a psychological sense. She says that conflict in the home leads to children growing up without the skills for dealing with conflict. As a result, they come out into the community as fomenters of conflict rather than as resolvers of conflict.
Collaborative divorce is about so much more than ending a marriage well. It also teaches critical social skills.
Well, we like to think of it as transformative of individuals and transformative of cultures. So thank you for helping us to explain that.
Thank you so much for being here today, Pauline, and for giving people who are going through divorce not just a sense of hope, but a sense of purpose and meaning in that they can be the carriers of consciousness.
It’s been a tremendous pleasure talking with you about this. Thank you.
Collaborative Divorce: A Revolutionary New Way to Restructure Your Family, Resolve Legal Issues and Move On with Your Life by Pauline Tesler and Peggy Thompson
A Parent’s Guide to Birdnesting: A Child-Centered Solution to Co-Parenting During Separation and Divorce by Ann Gold Buscho (See her wonderful blog as well.)
A General Theory of Love by Thomas Lewis
Thinking Fast and Slow by Daniel Kahnemann
Born to be Good by Dacher Keltner
A Marriage Story by Noah Baumbach starring Scarlett Johanson and Adam Driver
And for comic relief (yes, really) — Intolerable Cruelty by the Coen Brothers starring George Clooney and Catherine Zeta-Jones
After hearing her parents argue, child gives them sage advice in this youtube video