Carol Barkes & Colby Jones
Attorneys are tasked with zealously representing their clients’ positions,1 and in the courtroom, this principle is second to none. However, particularly in family matters, attorneys take on the role of advisor, which contemplates incorporation of extralegal considerations into the advice provided to clients. Advisors more holistically account for a client’s circumstances and future well-being.2 Guiding families through their legal crisis often entails making recommendations to use alternative dispute resolution as a means to resolve conflict.
Preparing family law clients for alternative conflict solving requires more than simply educating them on the basics of negotiation, their best and worst alternatives, or of the law underpinning the strengths of their case. It requires an understanding of how people respond to and deal with conflict and personal crises.
By recognizing some basics of how the human mind responds to stress, attorneys can provide more meaningful service while better preventing burnout—something common in the field of family law.3 By applying neuroscience to conflict resolution, attorneys are better empowered to understand themselves and others while avoiding the landmines that can make family law all the more challenging.
This article will address the effects of stress on family law clients, the conflict narrative many family law clients create, neuroscience-based techniques attorneys can use to help clients prepare to effectively engage in ADR, and some ADR tools that are particularly useful to clients going through divorce and custody proceedings.
Effects of Stress
To put it lightly, divorce and custody conflicts are stressful for clients, and in no small part because of the amount and immediacy of change to their lives it represents. The brain equates change with uncertainty. When the brain cannot connect all the dots, so to speak, it creates “evil plot twists” that may not actually exist.4 Consider, for instance, being asked by a supervisor to meet with them in their office. Rarely does such a request garner a positive reaction rather than a fear-based response, evoking thoughts like, “What did I do wrong?” or, “Am I going to be fired?” The uncertainty comes from not knowing the intention.
Where there is “information poverty” there is uncertainty. This response to stress creates a “fight or flight” reaction that shuts down the brain’s rational reasoning region, the left prefrontal cortex, and temporarily creates a mental “reaction machine,” as it were.5 It is an innate mechanism to protect against harm. Once attorneys are engaged, information tends to stop flowing, making clients more susceptible to these types of reactions. Attorneys, though, can assist clients in maintaining their grounding despite intense stress to ease the dispute resolution process and perhaps prevent needless litigation in the future.6
The Conflict Narrative
People in conflict almost invariably have a strongly held conflict narrative. They come to attorneys with narratives about the past, their relationships, and themselves (generally as hero or victim). They also develop their “evil plot twist” throughout the case, which generally conforms to their overarching conflict narrative created from a lifetime of past experiences often having nothing to do with the situation at hand. In fact, when one reviews their life memories, they should do so with the understanding the details are not all accurate.7
Attorneys can guide clients through reactionary moments of stress and conflict by modeling different thought processes and communication styles. Challenging an upset or distraught client’s narrative is difficult and perhaps counterintuitive because the standard mode when confronted with strong emotions is to console, agree, and comfort.
However, challenging clients’ stress-induced conflict narratives generally benefits them in the long run, where resolution is the goal. Otherwise, armed with these narratives, the client enters mediation as an historian-warrior ready to attack the other side, defend their own position, and doggedly fight for every fact in their own history. They will not, however, be equally equipped to manage stress and conflict or have any insight into their own role in its creation and persistence. Attorneys can model better thinking and communication styles to help clients manage their own stress responses.
Adapting Speech Patterns
Adapting speech patterns helps challenge a client’s views, especially when a client creates conspiracies about the “other party” or engages in other recognizable patterns of emotional responses to conflict, adapting speech patterns can help while challenging the client’s views. Breaking speech down to 10 words or less per sentence, or no more than 20 words for more complex topics. Either way, limiting speech to 30 seconds or less, and then pausing, will allow clients to absorb the message conveyed while under stress.8
In a similar vein, effective attorneys teach their clients to refrain from being defensive, but to instead accept responsibility and seek to understand their partner’s perspective. When confronted with hostility from a stressed client, or when challenging a client’s conflict narrative, simply ask questions that help the client redirect their attention towards solutions versus reliving the past. Defensiveness is rarely a successful strategy and one that escalates conflict.9
Attorneys do not need to be overly direct, rude, or “cross-examine” their clients. Rather, attorneys can ask open ended questions that encourage clients to be more forward looking, moving away from their conflict narrative. For example, simply asking clients to describe how they imagine their life post-divorce can help them refocus on their interests rather than positions, think more positively, and be more open to creative solutions.10
Another neuroscience gem that can benefit both clients and attorneys is to learn to recognize the effects of mirror neurons. Mirror neurons fire when an individual observes behaviors in others, such as crying and laughing. They are thought to be one of the cornerstones of empathy.11 When observing behavior, mirror neurons create an experience in the observer similar to the observed behavior, inducing similar emotions, such as joy and sorrow. This is one reason we cry in movies or get sad when a loved one is hurting.
While mirror neurons are an asset for relating to others, they present a conundrum for attorneys. Unless careful in keeping professional distance, attorneys risk actually taking on the emotions of their clients as their own. Attorneys may adopt their clients’ negative thinking and communication style born of a sense of urgency and frustration felt by their clients. This can lead an attorney to become overly aggressive with “opposing” counsel, become belligerent, uncooperative, even plain rude or verbally abusive.
The attorney may also become completely divested of a dispute resolution mindset and instead exacerbate the conflict from a sense of indignation and blame of the “other side.” Finally, this can lead attorneys to “advocate for the cognitive distortions and negative behavior of [their clients].”12 As much as the attorneys in these circumstances have allowed themselves to become victims of their client’s own conflict, they become perpetrators of that trauma upon other members of their profession. This is to say nothing of the waste of court resources when conflicts between attorneys fuel the litigation.
Attorneys who represent their clients as if they are managing their own personal experience run the very real risk of burnout. This not only dilutes an attorney’s ability to be objective as they experience their clients’ situations in “living color” but also activates their own stress responses even though the situation at hand is not a threat to the attorney.
To minimize the effects of mirror neurons, becoming the voice of reason, kindness, and calm, will de-escalate a client. This frame of mind protects the attorney, as well, because inordinate amounts of stress can have deleterious effects on mental and physical well-being. From a neuroscience perspective, acquiring excess stress from others can actually kill one’s own brain cells.13
With this information in mind, a final word of wisdom would be that attorneys refrain from considering opposing counsel as obstacles in their way, or as the “enemy.” Instead, outside of the courtroom, consider them as a peer collaborator to reach optimal resolution for clients.14 Avoid fueling the fire of high conflict situations and get families beyond these legal chapters and on with living better lives.
This attitude will protect attorneys from fight-or-flight stress responses and enable them to find more creative solutions for clients. A collective approach to resolving conflict is not only better for clients but for society as a whole, and it does not hurt one’s professional reputation either.
Additional Dispute Resolution Tools
Although there is not room in this article to address the underlying systemic causes for conflict among parties and their counsel within the family law judicial system, such as the rules and procedures that tend to exacerbate conflict from the beginning of a family law case, the authors do want to highlight some possible resources for resolving family disputes that are likely underutilized. Hopefully, attorneys and others reading this article may find the following resources useful in mitigating other influences that fuel conflict.
Personal Property Binding Arbitration. Although not a service well-known in Idaho, if parties cannot agree on division of personal property items of lesser value, they can submit the matter by order or stipulation to binding arbitration, to avoid taking every toaster to trial, as it were. A personal property arbitrator meets with the divorced couple, generally post-decree, to divide personal property (e.g., kitchenware, knickknacks, and the like), and will make final decisions in case of disagreement. The parties can bring their lists and reason why they should get what they want, and the arbitrator would then decide much as a court otherwise would, but without the involvement of attorneys.
Parties’ options during personal property arbitration vary by state but may also include selling all items and dividing proceeds, agreeing on division of some items with the arbitrator making final decisions if an item is disputed, using auction-style methods, and even alternative selection methods, to name a few. This is generally limited to items of personal property that the courts and attorneys would rather not have to litigate.
Temporary Orders Mediation. Couples can be encouraged to come up with temporary solutions on issues of property and custody early in the case. This helps avoid the inevitable exacerbation of conflict for every couple who is simply waiting for a divorce to finalize while simultaneously supporting separate households.
This requires attorneys to schedule their clients with a mediator perhaps even before mandatory disclosures, realizing that these orders are merely temporary and not representative of final financial resolutions. Courts can do much to encourage attorneys to have conferred about temporary orders for division of income, expenses, and custody prior to the scheduling conference.
Transformative Co-Parenting Mediation. Although most mediators are familiar with the facilitative and evaluative mediation methods, particularly attorney-mediators are not always as familiar with transformative mediation, nor are comfortable with it. However, especially for custody cases, such mediation methods help parents gain some self-awareness about how conflict affects their own perceptions and communication.
“Mediators using a transformative approach believe that by changing the quality and improving the interactions (or at least establishing a neutral interaction) between the parties, any resolution to the issues may follow.”15 Mediators do not need to be counselors to engage in this type of mediation and it can help the parties learn to communicate in the future which is of significant value to the mental health of the entire family unit.
Collaborative Financial Divorce Planning. Although too often overlooked, financial professionals who are willing to serve as financial mediators or assist in mediation, can provide financial guidance to parties and their attorneys openly and transparently to help divorcing couples become more aware of the financial ramifications of their decisions. This is most effective because the parties and attorneys have information from the same source.
Of course, they may hire their own experts separately, but attorneys sometimes tend to forget that they are not financial planners or tax experts. Making promises or providing guidance beyond one’s professional expertise is a pitfall best avoided.16 If clients are to be referred out to experts, they should likely start by hearing information from the same one.
Hopefully, practitioners in Idaho will find these resources useful as peacemaking tools to help families build back their lives. In Idaho, as elsewhere, there are myriad policies that could be enacted both at the legislative and judicial rulemaking level that would help keep family law what it should be about – helping families in crisis.
This is a national, rather than a state-specific problem, and the authors encourage attorneys and other helping professionals to continue to engage in meaningful discourse on these issues. For a premier, please see Denver University’s Institute for the Advancement of the American Legal System publication entitled, “Family Law Bar: Stewards of the System, Leaders of Change, May 2016.”17
- Idaho Rules of Professional Conduct, Preamble .
- Id., Rule 2.1, n. (“Family matters can involve problems within the professional competence of psychiatry, clinical psychology or social work. . . . Where consultation with a professional in another field is itself something a competent lawyer would recommend, the lawyer should make such a recommendation.”).
- Melissa W. Bernier, LCSW, gave an excellent CLE on the subject of vicarious trauma and burn out among those in helping professionals, entitled Trauma Stewardship, on October 28, 2022, for the Idaho State Bar. She recommended a couple of resources for testing whether trauma and burnout are affecting you–the ProQOL and STSS online testing tools.
- Hilary Scarlett, Neuroscience for Organizational Change: An Evidence-based Practical Guide to Managing Change(Kogan Page Limited, 2016).
- Amy Arnsten, Stress signaling pathways that impair prefrontal cortex structure and function, Nature Reviews Neuroscience (2009).
- This article does not deal specifically with High Conflict Personalities, although clients with high conflict personalities will almost certainly need an attorney to challenge their narratives and model better communication and thinking.. For more information on this topic, please see “High Conflict People in Legal Disputes” by Bill Eddy, LCSW, Esq.
- Elizabeth Loftus, Memory(Ardsley House Publishers, 1988).
- Andrew Newberg M.D. & Mark Robert Waldman, Words Can Change Your Brain (Penguin Press, 2015).
- John Gottman, The Four Horsemen: Criticism, Contempt, Defensiveness, & Stonewalling, https://www.gottman.com/blog/the-four-horsemen-recognizing-criticism-contempt-defensiveness-and-stonewalling.
- David Rock, Quiet Leadership(Harper Collins Publishers, 2006).
- David Eagleman, The Brain(Pantheon Books, 2015).
- Bill Eddy, High Conflict People in Legal Disputes 164 (Unhooked Books, 2nd ed., 2016).
- RM Thomas, G Hotsenpiller G & DA Peterson, Acute psychosocial stress reduces cell survival in adult hippocampal neurogenesis without altering proliferation, 27(11) Journal of Neuroscience 2734 (2007). doi:10.1523/JNEUROSCI.3849-06.2007.
- To clarify, this collaboration does not take the same form as “collaborative law” whereby attorneys only advise clients as to law in settlement conferences, but do not advocate for their client, but assist them through the resolution process. Although our judicial system is an adversarial one, and attorneys have strict duties to their clients, attorneys can and do engage in settlement discussions and negotiations in family law daily. Adherence to the standards of professional conduct does not mean that attorneys cannot creatively help clients find solutions, or refer them to mediators and other professionals who can.
- Brandon & Fisher, Mediating with Families 30 (Thomson Reuters, 4th ed., 2018).
- Too often, attorneys tell their clients the “rules” about federal tax head-of-household claims and child tax exemptions that are simply wrong. Others make the mistake of considering post- and pre-tax dollars to be equivalent. Please refer clients to financial professionals.
- Family Law Bar: Stewards of the System, Leaders of Change, Denver University Institute for the Advancement of the American Legal System (2016) at https://iaals.du.edu/sites/default/files/documents/ publications/the_family_law_bar_stewards _of_the_system _leaders_of_change.pdf.
Carol Barkes, CPM, is a neuroscience-based conflict and communication specialist, best-selling author, mediator, and consultant with a wide variety of experience including speaking at the United Nations. She has been described by Fox TV as “one of the TOP Neuroscience and Conflict Resolution experts in the country,” and was twice honored as Idaho Woman of the Year. Carol is an ADR Advisor to the Department of Homeland Security/FEMA. She is an Adjunct Professor for the University of Idaho, Boise State University, the College of Southern Idaho, and is a sought-after keynote speaker with a thriving private practice through which she provides training, consultation, facilitation, coaching, and mediation for some of the world’s most notable organizations including Amazon.com, Idaho Power, HP, and Kount. In careers gone by, she was also a professional firefighter in the San Francisco Bay Area.
Colby Jones, JD, LLM, is a litigation attorney with Cordell Law and holds an LL.M. in Dispute Resolution from Pepperdine University’s Straus Institute for Dispute Resolution. Colby currently serves as chairperson of the Dispute Resolution Section of the Idaho State Bar. He is a mediator and is listed on the Idaho Supreme Court roster of custody mediators. Colby is a TedX speaker (Twin Falls, 2014). While in law school he served as the Vice Chair of the Alternative Dispute Resolution Student Organization (2014) and externed for Idaho Legal Aid. After graduating, he completed a judicial clerkship with the Hon. Benjamin Cluff of the Fifth District. Before seeking a career in law and alternative dispute resolution, Colby was an adjunct instructor for the College of Southern Idaho and Great Basin College. He and his family moved to several continents, where he divided his time between teaching at universities and participating in volunteer activities. He is now committed to advancing dispute resolution in Idaho.