Separating and divorcing parents’ inability to reach agreements on their own as it pertains to the custody and visitation of their children is far from uncommon.


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After all, they’re separating and divorcing, assuming they ever actually had any sort of relationship other than just sexual. If the issues between them were small enough to be swept under the proverbial rug, wouldn’t they likely still be together as a couple, assuming they ever were? To what extent, if any, have they processed their feelings and emotions before finding themselves unable to reach parenting and other types of agreements on their own?


These are important questions to answer because as much as we may want to believe otherwise, neuroscience has found that decision-making isn’t logical, it’s emotional.


In the last article of mine published by coParenter titled, “Why Court Really Should Be a Last Resort,” I quoted Thomas DiGrazia explaining that unprocessed emotions fuel legal warfare within our adversarial legal system. You see, emotions motivate our behavior and the feelings we experience are physical reactions to our emotions. We harm ourselves if we deny ourselves the ability to experience our emotions.


When parents engage in custody battles over their children, they do so under the guise that it is in their children’s best interest, but is that generally true? Please don’t misunderstand; I am not suggesting that parents don’t sincerely believe that what they want is in the best interest of their children. I am, however, suggesting that not all beliefs are fact based, regardless of how sincerely held such beliefs may be. According to Bill Eddy, LCSW, JD, “Much of today’s legal disputes are what I call Emotional Facts – emotionally-generated false information accepted as true and appearing to require emergency legal action.”


So, I’m going to ask again, to what extent, if any, have those parents who find themselves unable to reach agreements on their own as it pertains to the custody and visitation of their children processed their feelings and emotions?


There’s an old saying, “A man who is his own lawyer has a fool for a client.” That proverb means that self-representation is likely to end badly because of the lack of objectivity – i.e. impartiality, bias, prejudice, fair-mindedness, neutrality, open-mindedness, detachment, dispassion. Our emotional reactions are based upon our biases, beliefs, assumptions, expectations and values, which are formed as a result of our personal backgrounds and life experiences. We all have biases, beliefs, assumptions, expectations and values.


The question is how much our lack of self-awareness is skewing our perception of things. Is the answer retaining lawyers to advocate on your behalf as warriors within an adversarial legal process? Are those legal warriors helping you to process your emotions and put them into perspective or are they helping you to run with them? What training, if any, have they received in that regard, considering that law school teaches the practice of law within our adversarial legal system?


To assist you in answering these questions, allow me to share the results of the national study, funded by the Hazelden Betty Ford Foundation and the American Bar Commission on Lawyer Assistance Programs that was published in the Journal of Addiction Medicine in February 2016. The study concluded in part as follows: “Attorneys experience problematic drinking that is hazardous, harmful, or otherwise generally consistent with alcohol use disorders at a rate much higher than other populations…. Depression, anxiety, and stress are also significant problems for this population.”


Patrick R. Krill, a licensed attorney and board-certified alcohol and drug counselor, and director of the Hazelden Betty Ford Foundation Legal Professionals Program commented as follows regarding the results of the study in an article published by the American Bar Association: “What’s behind these extreme rates of depression and problem drinking? The answer is less straightforward, but the rampant, multi-dimensional stress of the profession is certainly a factor. And, not surprisingly, there are also some personality traits common among lawyers—self-reliance, ambition, perfectionism, and competitiveness—that aren’t always consistent with healthy coping skills and the type of emotional elasticity necessary to endure the unrelenting pressures and unexpected disappointments that a career in the law can bring…


The general climate in the legal profession tends to be emotionally isolating, rigorously demanding, anxiety provoking, and lacking in adequate consideration for balance or personal wellness. Most attorneys wear their hard-earned ability to swim in such rough professional waters as a badge of honor, and they aren’t inclined to let others know they suddenly ‘can’t cut it.’ And it’s this fear—that others will find out they’re weak, vulnerable, or troubled—that is one of the most common reasons that attorneys cite when asked why they believe seeking help isn’t a good option for them.”


As such, are lawyers who have been trained to operate as warriors in the adversarial divorce process the most well-equipped to help people process their emotions and provide proper perspective? Are they working toward reducing existing conflict and improving the quality of coParenting relationships? How and to what degree are they encouraging open dialogue between the parents and working to try and improve their communication, and what is their training and skill set in that regard? Are they working to problem-solve and build bridges or to “win” on behalf of their client?


After all, high levels of parental conflict can cause childhood trauma. In a marriage, separation or divorce, it is the chronic and/or toxic parental conflicts that are extremely harmful to children – not divorce or separation itself, particularly when the conflict is child-focused.


While each parent may trust their own attorney, do they trust each other’s attorney, if any? This is a rather important question because if parents don’t trust each other, shouldn’t they be trying to build a bridge between themselves for the sake of their children? If so, and if parents are at an impasse, wouldn’t a bridge-builder be an impartial person whom they both trust?


Might I suggest involving a well-trained and experienced facilitative mediator?



About Mark Baer

Mark Baer is a lawyer, mediator and conflict resolution consultant. He has decades of experience in family law and has crafted a reputation within the industry for his psychologically-minded and child-centered approach.

Mark is also a well-known writer and columnist for a number of publications on the interplay between psychology and conflict resolution within the field of family law, as well as familial and interpersonal relationships in general. He has had a regular “Psychology and Family Law” column in the San Gabriel Valley Psychological Association’s award-winning bimonthly newsletter since 2008. A member of Psychology Today’s expert community, Mark also has a blog column titled “Empathy and Relationships: Fostering Genuine Open-Mindedness.” He is also a HuffPost Blogger and a number of those blog articles have been referenced in books, law review articles, by evidence-based public policy think tanks, and elsewhere. Mark has written extensively for a number of other publications, as well. His material has been used and shared by law school professors, and by some of the highest ranked dispute resolution organizations in the country, such as the Straus Institute of Dispute Resolution at Pepperdine University School of Law and the Harvard Negotiation & Mediation Clinical Program at Harvard Law School.

He has also presented on several occasions at the California Psychological Association Convention, the American Bar Association Section of Family Law CLE Conference, and the Southern California Mediation Association Conference, among other such organizations.