Saturday, February 21, 2009

Mediation and Collaboration Empower Divorcing Parties to Resolve Their Own Disputes

The Divorce Coach’s Corner #1: Mediation and Collaboration Empower Divorcing Parties to Resolve Their Own Disputes
The Tale of Cat, Rabbit & Fox

Once there was a cat, a rabbit and a fox. Cat and Rabbit started fighting over a piece of delicious cheese they had found in the forest. Rabbit broke the cheese into two pieces. Cat grabbed the larger piece for himself, announcing, “This piece is mine.”

Rabbit, of course, had to disagree, “No it isn’t, it is mine!”

Just then, Cat saw a fox walk by and called to him, “Mr. Fox, we have two pieces of cheese and I want the bigger piece, shouldn’t it be mine?”

Rabbit interjected protesting, “That’s not fair, I want the bigger piece, it should be mine!”

“I will solve this problem,” said Fox, “I will bite the bigger piece so that both pieces will be the same, “ and with that, Fox took a bite out of the bigger piece of cheese.

“But now the other piece is bigger!” complained Cat.

“No worries,” said Fox, “I will now take a bite out of the other piece.”

“But now the first piece is bigger, no fair!” cried Rabbit.

“Never fear, I will solve this problem for you,” said Fox. This process continued as Cat or Rabbit each time complained about how much cheese should be his or hers and with Fox taking bite after bite until finally, all the cheese was safely in Fox’s tummy. “Mmm, that sure was good cheese, too bad you two lost your chance to have some.”

Cat started to whine, “But all the cheese is gone now!”

Fox grinned, “So it is. But at least the pieces are the same size,” and with that Fox ran off.

“But which piece was mine?” asked Rabbit in a daze.

“I guess it doesn’t matter now,” said Cat wistfully, “they are both gone, and now we don’t have any cheese at all.”

Only then Cat and Rabbit realized, “I guess we should have solved our problem ourselves.”

I witnessed the saga of Cat, Rabbit and Fox as a short play in my daughter’s theater class. To me, the tale illustrates the fall out of the litigated divorce with the loss of cheese signifying the loss of, among other things, the dignity of the participants. It is a cautionary tale of what can happen to couples that decide to fight with each other, utilizing the court system instead of choosing non-litigation techniques such as mediation or the collaborative process. The Fox doesn’t symbolize the actions of any particular person, lawyer or judge, but rather the dehumanizing and unsatisfying process of litigation itself, and what happens when litigants focus on grabbing all they can, instead of stopping and thinking of creative ways to come up with a solution that would be fair to all—a solution that the participants can “own” because they worked it out for themselves instead of having “the system” dictate a solution that satisfies no one.

What would have happened to Cat and Rabbit’s cheese if instead of filing complaint after complaint with Fox they had instead decided to empower themselves with the help of a mediator or through the collaborative process to decide for themselves what would be the most fair distribution of the cheese? Would they have been happier with the outcome? I submit that they most certainly would have.

Actually, Cat and Rabbit had a lot more in common than they thought, just as divorcing parties usually have much more in common than they sometimes realize. It has been said that the divorce process brings out the very worst in otherwise perfectly nice “Cats” and “Rabbits.” But it doesn’t have to be that way. As a divorce mediator and collaborative family lawyer, I have noticed that most people, most of the time, once they are able to get past the anger and fear, are perfectly capable of coming up with their own solutions. I’ll take it further than that and venture to say that most people most of the time want to do the right thing. They have an inherent sense of fairness. They love their children, want what is best for them, and even though they are divorcing, have somewhere inside them some sense of caring for their soon to be ex-spouse. Even in the “ugliest” of divorces, as long as at least one of the parties calls a “truce” with his or her ex and starts acting with more compassion towards the other, even seemingly impossible divorce situations can be turned around, especially with the assistance of a gifted facilitator.

I would encourage more lawyers and divorcing parties to educate themselves about the benefits of mediating their disputes or choosing to use the collaborative process, whereby a “divorce transition team” of professionals is formed to help the couple get themselves and their family through what can be one of life’s most stressful events. Mediation and collaboration not only help divorcing couples maintain their dignity, such processes also tend to cost less money than litigation, allowing the parties to keep more of their financial “cheese” for themselves and their children.

Brooke Deratany Goldfarb, Esq., Harvard Law, J.D., is a family mediator and collaborative lawyer with Peaceful Beach Mediation and Collaboration in Indialantic, Florida. Brooke can be reached at 321.626.2858 or

The Difference Between a Good Argument and a Bad Argument

The Divorce Coach’s Corner--#2
The Difference Between a Good Argument and a Bad Argument

When most people think of divorce, they get an image in their head of two angry and upset people fighting with each other. It is true that in a divorce it is likely that at least one party has at some point said or done something to enrage the other. Indeed, divorcing parties often don’t see eye to eye. They argue over money (or the lack thereof), the division of assets and liabilities, how to parent and share time with the children, and countless other issues. With so much to argue about, how can a divorcing couple possibly be expected to resolve their differences amicably?

The answer is simple: Go ahead and have an argument. Just make it a good one.

What makes a “good” argument as opposed to a “bad” argument? I found an answer one Sunday when I came in early to my daughter’s 2nd grade Hebrew school class. Written on the board was an explanation of the difference between a “good” argument and a “bad” argument. It went something like this: When people argue by taking turns respectfully listening to each other explain their different points of view and what they perceive to be true for them, that is a good argument, or what the rabbis of yore called “an argument from heaven.” This means no name-calling, no accusing, no dwelling on past hurts and sleights. In a good argument, when all is said and done, the parties have actually learned something from each other. They understand each other better and feel heard by the other person, even if they still don’t necessarily agree with each other, at least they can find some common ground or a resolution they can both live with.

When two people argue by calling names, making accusations and not listening to the other side; when they focus on trying to hurt each other with jibs and jabs; when they are more concerned with making their spouse “pay” for the pain they feel that the other person has caused them, instead of what would be the most fair and equitable resolution for everyone concerned, that is a bad argument or what the rabbis called, “an argument not from heaven.”

Processes such as mediation and collaboration provide safe forums for parties to express their needs, desires, concerns, fears--and even anger--through the use of good, healthy argument. Alternatively, the litigation of family matters in a courtroom easily lends itself to the use of bad arguments. When litigation is involved, people tend to get all caught up in their anger without an appropriate way to express it. Instead they focus on “getting” the other person or “punishing” their spouse by “beating” him or her in court and “winning.” But in such a situation, no one really wins, and even when they win, they still lose. One side might get his or her way but only at the extreme emotional and financial cost to both the parties and their children. No one ever came out of litigation feeling like they had improved their relationship with their ex-spouse. Most people come out of litigation feeling spent and oftentimes even angrier and more hurt than before.

Litigation of family matters erodes the possibility of the all too important post-divorce parenting relationship. Even for parties without young children, the litigated divorce does not provide closure. The mediated or collaborated divorce on the other hand, does just that, and at a fraction of the legal fees of the litigated divorce.

When people choose to dissolve their marriage outside of the courtroom, they empower themselves to make their own decisions about their future. It benefits society as a whole when families can work out their own differences outside of the court system. Excessive fighting not only destroys families, it also clogs up the courts and prevents the truly irresolvable matters from getting the attention they deserve.

So go ahead and have an argument. Just make sure it is a “good” one and if you find yourself or your client in the unfortunate position of needing to dissolve a marriage, explore how mediation or collaboration can at least make this most stressful of life experiences a more positive and productive one.

Brooke Deratany Goldfarb, Esq., Harvard Law, JD, is a mediator and collaborative family lawyer in Indialantic, Florida at Peaceful Beach Mediation and Collaboration ( She can be reached at (321) 626-2858 or