{3 minutes to read} As a divorce mediator, it’s not surprising that I work with many couples who experience a lack of communication. Since that lack of communication is now being coupled with spending an inordinate amount of time with your spouse during the pandemic, you may consider this an opportunity to improve your communication.

In Listening During a Pandemic, Kate Murphy writes that while a pandemic has the likelihood of causing an increase in divorce, it can also bring a couple together.

Ms. Murphy writes that given the stress of the times, and possibly the stress of an unhappy relationship, the failure to listen only serves to aggravate the negativity at a time when you need the other party the most. Instead, she suggests:

• Listening to the other person can not only help you understand them but also to recognize when you may need to give them some space. 
• Asking questions about what or why the other likes something shows that you are interested in what they have to say, and answers lead to more questions, which lead to more answers and understanding.
• Pose a hypothetical question like “If you could time travel, where would you go?” These questions can stir the imagination and open a window into someone’s thoughts in ways you may have never considered.
• Since this is more of a listening than a speaking event, try to refrain from making the conversation about you or giving advice. Keep in mind that most people just want to be heard, understood, and accepted, especially when there are no answers to their concerns or issues.

I often write about the need to be heard and understood in the context of a divorcing couple and work in mediation to ensure that each party listens to the other in our meetings. It can be painfully apparent that a couple has long ceased listening to one another, and possibly, even talking to each other about something besides the mechanics of sharing a household or children. What begins with a lack of communication can lead to either conflict or just retreating even further into yourselves.

If you find yourself in this situation, and you’re both willing to do so, you can try some active listening skills as those proposed by Ms. Murphy. If you feel you need more, you can seek couples counseling which can be done online.

Even if you ultimately decide to separate, learning communication skills will help in reaching terms of a settlement as well as parenting after you separate. 

{3 minutes to read and listen} It’s nearly impossible to consider any kind of opportunity that could exist during this global pandemic. Yet, my colleague, Maggie O’Connor, does just that in this video describing how to remain healthy by making a greater connection with those around you and even with yourself. Please listen to her video below or visit her website to learn more about how, through connection, you can get through this. 

Opportunity in Crisis #FindYourTribe 

{4 minutes to read} As I’m writing this on March 30, 2020, the Courts in New York State are open only for emergency relief, such as family offenses/orders of protection and child protective matters. Parents who are having non-emergency custody disputes are unable to access courts at this time to resolve their dispute.

In an article in the New York Law Journal, Judge Jeffrey Sunshine, the Statewide Coordinating Judge for Matrimonial Cases, was praised on two diverse listservs to which I belong, for his uniquely helpful approach.

Judge Sunshine presented the perspective of a judge’s thought process in hearing such a dispute, as a guide for advice attorneys could provide to clients, and the actions that clients should follow. In considering one of the factors that determine custody, namely, which parent is likely to provide access to the other, Judge Sunshine looks to the parties’ present behavior as an indication of how they will act in the future.

A parent may disobey a court order and refuse access to the child, knowing that the other parent is unable to go to court immediately to seek relief. This could result in a short-term “win,” but such behavior could have a major negative impact on the ultimate decision for that parent.

On an even more fundamental level, though, Judge Sunshine notes that how parents relate to each other in these times “will shape their relationship with each other as divorced parents in the future, the relationship they have with their children and most importantly the relationship that their children have with them.”

While modeling appropriate behavior has always been a vital role of a parent, it cannot be overstated how crucial that is now. What do you want your children to remember?

• Their parents working together to find a way to keep them in touch with both parents, when they so deeply needed both of them in their lives; or  
• One parent trying to manipulate the crisis to gain an advantage over the other parent?

Of course, there can be genuine safety reasons why a parent might not think it’s in the children’s best interests to visit the other parent. In that case, both parents can accept a temporary halt to in-person visits and have virtual visits to preserve the continuity of the relationship.

The daily toll this pandemic takes on all of us is enormous. That stress is even greater for those who are struggling to maintain co-parenting with someone with whom they barely agree on anything. If you are trying to be reasonable but have a co-parent who refuses to do the same, then you should contact your attorney and see if there is anything that can be done. But if you both can understand that working together now will significantly impact your children’s future in a much more positive way, it could lead to a much better outcome.

Please take a look at these PRACTICAL TIPS published by the American Academy of Matrimonial Lawyers and the Association of Family and Conciliation Courts that parents sharing custody can follow. See if they can help you navigate through this time.

If you are both willing, you can also research parenting coordinators, co-parenting coaches, and mental health professionals in your area, who can help you to address your immediate concerns.

As always, but never more profoundly than now, please consider mediating your dispute if no other options have helped. Most mediators are providing mediation services online and remain committed to helping you reach a child-centered resolution.

Stay well. 

{7 minutes to read}  As is the same for all of us now, we are struggling to maintain a sense of calm, not just for ourselves but for our families. Clearly, this would be the perfect time to meditate, but the craziness of the moment has disrupted my routine and my practice—making the thing that would help feel just too hard to do right now.

Thankfully, my meditation teacher, Cheryl Brause, has written this blog providing practical advice to help keep all of us centered even if we don’t feel like meditating. With her permission, I share her timely and constructive post. 

How to Keep Your Household Calm During the Coronavirus

Mediation may not be appropriate for everybody but could be the right process for you. Unfortunately, many people dismiss it out of hand, based upon some misconceptions about what mediation is or isn’t. This video tries to dispel some of the most common myths to help you decide if mediation is right for you.

{4 minutes to read} Are all family disputes the same? Of course not. Divorce mediation is different from mediation involving the contest or interpretation of the provisions of a Will or Trust Agreement. But clearly, they have similarities:

Ongoing Relationships

While some familial relationships may have always been troubled, it’s likely that at some time, the parties probably got along well. And they may need to continue to get along for the sake of attending extended family gatherings, care of a surviving parent, etc., just as ex-spouses need to get along for the sake of their children.

For these reasons, mediation is as beneficial for estate and trust disputes as it is in a divorce. And with the adoption of presumptive mediation in New York Courts, parties may have the opportunity to mediate their dispute.

I serve on the Roster of Mediators for Westchester Matrimonial and Surrogate’s Courts. I have found the Surrogate’s Court matters I’ve mediated to be well suited to the process and helpful to the parties, even if not all have resulted in a full settlement. The benefits include: 

• An increased likelihood of keeping an ongoing familial relationship, including among the children of the siblings in conflict. The chances of this are greater if there is an outcome that is agreed upon versus a win/lose outcome that would be inevitable in a judicial resolution. 

• The strong emotions that exist because of a breach of trust are better addressed by a trained mediator than through a litigation process that tends to inflame rather than calm or resolve those emotions.

• Most importantly, the opportunity to be heard and understood is more likely to present itself in mediation, which in turn can lead to a resolution that addresses the parties’ needs and interests.

As helpful as I have found the court-ordered mediation process to be, I think it would be even more beneficial to mediate estate issues as a first option, just as I recommend mediation as a first option in divorce. This can prevent the positional posture and hardened points of view that occur in an adversarial process.

Because of the presumptive mediation mandate, trusts and estate attorneys are more aware of the benefits of mediation. Many have taken mediation training themselves. So, if you are involved in a contested estate, you can speak to your attorney about whether it would be possible to pursue mediation before filing a contested action. 

In this video, the last of the series on Equitable Distribution, we look at the implications of the statute to parties in mediation. It is important for clients to know what the law provides, and what is likely to happen in Court, whether they are in mediation or not. Then, when in mediation, they can make informed decisions as to whether to apply or waive the provisions of Equitable Distribution.

In my last video, I mentioned marital property as a part of the discussion of Equitable Distribution. In this video, I want to explain the difference between assets that are separate property and those that are considered marital property.

There are 14 factors that are used by courts and attorneys to determine an equitable distribution of marital assets. In mediation, the couple makes these determinations together. Taking the time to review the factors, however, you may find one that resonates with you, and allows you to make a proposal to your spouse that will take into consideration its relevance to you and explain why you think you should get the property distribution that you are proposing in your mediation.  

{4 minutes to read} When I’m being mindful of what I’m saying, I can stop myself from using the word “but” after I’ve just apologized to someone. I recognize how off-putting that can be to the person to whom I’ve just apologized, and that it effectively negates everything that I said before the but.

When I really don’t believe I’m at fault, though, I may very well end up with an apology followed by “but I didn’t mean to do that because of......” Then I belatedly realize that I gave a non-apology apology and if I really intended to apologize, I will need to do it all over again — without any excuses.

So, I know from my own experience that it’s very hard to avoid using but, especially when strong emotions are at play. It’s a word that comes so naturally when you feel threatened and defensive.

I also know from my professional experience that when a client uses but in mediation, what is said after the but is all that the other person focuses on. That one little word can not only obliterate what had been previously said, but if you use but regularly, the other person may not even listen to what you say initially in anticipation of the but.

By way of example, I had a client recently who attempted to take responsibility for past behavior that she knew was hurtful to her partner. I could see that her partner was receptive to the words being said and his eyes began to show understanding. Then, came the but followed by an excuse for the behavior for which she was apologizing. At that point, the partner reacted even more negatively than before the apology. It would have been more productive had she not said anything at all.

The better approach — if you sincerely intend to apologize — is to just stop after the apology. If you can’t do that, then consider whether you are truly ready to apologize.

The danger of but in mediation isn’t limited to non-apologies for past behavior. It can also serve as an excuse for future behavior, as in “I agree that it would be good for our daughter to join the dance club, but I can’t afford it.” A better approach in mediation would be “I agree that it would be good for our daughter to join the dance club. Now, how can we pay for it?”

• It’s not off-putting. 
• It can lead to discussion. 
• It very well may result in both of you acknowledging that it’s not affordable right now without resenting one another.

Eliminating the use of but can be a tall order, so a first step can be to recognize it in retrospect when you think about how a past conversation went. If it makes sense, you can try a redo, and if not, you can learn from it. Being in the moment and conscious of what you’re saying takes practice, and you will find that it is well worth the effort.