written by Michael McKiernan
published in Law Times

A crash course in neuroscience can dramatically improve family lawyers’ relationships with their clients, according to a Toronto practitioner.

Nathalie Boutet, a mediation and collaborative partner at Basman Smith LLP and founder of the Neuro Family Law Institute, says lawyers have been slow to capitalize on the ever-developing area of brain research.

“Lawyers don’t think it’s their job to know about the workings of the client and their brain,” says Boutet.

“They think it’s their job to know about the law, but it’s impossible to separate the law from the people who are in the legal system. Lawyers are a little bit reticent to get in when there are strong emotions, and I’m not asking that we become therapists.  I’m asking that we become aware of what is going on for our clients so we can intervene gently and powerfully.”

At the recent Neuro Family Law Conference in Toronto, Boutet and professional coach Linda Page told a room full of lawyers it’s hard to appreciate how difficult the family law process can be for clients.

“For them, it’s like being in a burning house with no escape,” said Boutet.  “They are trapped in our system.  The way their brains work has serious implications for them, their kids, and their families.  We are not taught that in law school.”

Boutet said brains build up a shorthand for interactions with people and places based on stored memories of previous encounters that she calls brain patterns.

For evolutionary reasons, negative interactions are more likely to get stored so people are ready to respond when they sense danger.  After years of negative interactions with a former partner, that means even apparently minor complaints can trigger emotions, according to Boutet.

“How many of you have had a client who says,’ Did you see the way he looked at me?’ That’s real for them.  We can’t say there was no look or don’t worry about it.  It’s their experience, and we can’t trivialize what triggers them.  It means nothing to us because we don’t have the brain patterns associated with that look.”

Lawyers should be aware, she said, of the effect the heightened emotions involved when clients split from partners can have on their thinking.

“Our ability to think and reason diminishes when we are triggered,” she noted.  “Just think of how many times your clients are triggered, and you’re asking them to make complex decisions.  Should you guys have spousal support with tax or without tax?  Should you sign an interim agreement?  Should you choose a collaborative lawyer?  It’s endless.”

As a result, according to Boutet, family lawyers should encourage clients to take notes during meetings and have them repeat back the subjects discussed in order to make sure they absorb the information and understand the consequences of any decision.

“You know your client is not going to retain a thing you say at your first meeting, so you might send them a confirming letter,” said Boutet.

The process can also leave many clients on a short fuse.  Boutet recalled one of hers, a former government employee who was the epitome of calm and respect in meetings with her.  But during a spousal support negotiation, the man exploded in rage after his wife wrote down her opening offer.  He lifted himself up on the chair and onto the table, went red in the face, and said, “This is ridiculous, I’m leaving,” said Boutet.

Page, meanwhile, led participants through the SCARF model that divides most human social experiences into five broad categories: status, certainty, autonomy, relatedness, and fairness.

Threats to any one will elicit an automatic emotional response, Page said, but understanding which of the five categories is most important to the client can help a lawyer prepare.  In the case of Boutet’s government worker, the perceived unfairness of his wife’s offer triggered him.

A way to tackle the problem in advance is desensitization or “trying something over and over,” said Page.

“There’s a lot of work we can do with our clients ahead of time to say, ‘How are you going to feel when this option is presented?’” said Boutet.

Another technique involves reframing the situation.

“If you see a picture of people coming out of a church crying, the first reaction is they’re in grief,” said Page.  “If you reframe it and say the context is at a wedding.  It changes things.  Reframing can help calm the limbic system.”

Simply encouraging clients to think about what’s likely to trigger them can actually help limit the emotional response, according to Page.

“If you catch yourself getting angry, then wait a minute and take a breath,” she said.  “It gives you the ability to switch from intuition to where we do our reasoning,” she added.

• You can hear the interview on the Divorce Source Radio home page at: http://www.divorcesourceradio.com/
• You can also access the direct link here: http://www.divorcesourceradio.com/how-your-brain-can-make-divorce-smarter/

Authors Bush and Folger[1] speak of the power of mediation to resolve divorces. The methodologies of mediation are very well suited for resolving conflicts between people that have been in close or personal relationships or for those that will be tied together in the future – such as when there are children.

The ultimate goal of mediation is to resolve all of the legal issues related to a separation on a final basis in a manner that serves the interests of both parties and their families. But even if mediation terminates before a final agreement has been reached, the mediation process can still be considered successful for families.

Mediation would be considered successful if any of these factors were achieved:

1. It allowed the parties to open a channel of communication when none existed, even if it is only for a limited time.
2. Parties have reached some agreement(s) on some issues; either temporary agreements (agreements that only last for a defined period of time) or partial agreements (agreements that cover some but not all of the issues).
3. If any of points 1 or 2 has made the legal separation process less expensive than if the parties had not tried mediation.
4. If any of points 1 to 3 has given some hope or relief to a party or a child of the family.
5. The parties have reached a final agreement on all issues.

Mediation can therefore be extremely positive even if the process were to end before a final agreement has been reached. Mediation has a high success rate.

While I see mediation having tremendous value to the families that I have the privilege of helping, there are some circumstances when I would not recommend mediation. Making the decision to choose mediation or any other type of process requires some understanding of all of the options. This ensures that the choice of process will be beneficial to your family needs.

People who face a separation should consult with more than one professional to make sure that they are explained the pros and cons of the several process options. Beware that some lawyers may not be inclined to propose processes that they do not practice in.

Some of the circumstances when I would not recommend mediation or other types of out of court processes include:

• There is urgency and if it remains unresolved it will prejudice the legal position of the other person. Examples include money being dissipated or people threatening to take children out of the country;
• Someone is afraid for their or their children’s safety;
• There is serious lack of trust;
• Untreated mental illness; or
• Uncontrolled addiction.

Getting sound legal advice about the different processes is crucial to ensure you choose the process that best meets you and your family needs.

   Written by Nathalie Boutet

People contemplating separation have frequently endured long periods of time, sometimes years, in unhappy, acrimonious and even violent relationships. Most of these people have experienced strong negative emotions towards their spouse for years. The limbic system and more precisely the amygdale, is responsible for some of our emotions. 2

Our ability to think and reason is interconnected with how we feel. This causes our ability to think to be diminished when we are experiencing strong emotions.3 It is the frontal cortex that is responsible for reasoning and thinking.

In family law, we throw these already emotionally taxed people into a legal process which is rooted in conflict. We ask these emotionally drained people to work with their spouse, whom they could not work with during the marriage and to make decisions that will have deep impacts for the rest of their and their children’s lives.

When separating people are asked to work with their former partner, they are usually triggered emotionally. They are asked to make decisions when they are animated by strong feelings of fear, shame, anger and resentment. We ask them to make decisions when we know their cognitive faculties are diminished. This partly explains why separating spouses find it so difficult to work together, and why so many families and children are destroyed by the separation process. The impact of this predicament can have long term devastating effects both emotionally and financially for both spouses and their children.

While we often hear that things are much better and that many cases end before parties go to trial, there is little cause for celebration. Usually by the time people settle they have gone through exhausting, scary and stressful steps in the legal system.

According to research, the type of negotiation that most families encounter during their legal journey leaves them feeling dissatisfied. Aptly said by Professor and Author Julie Mcfarlane4:

[In Court] lawyers prepare for litigation and negotiation in virtually the same manner. Clients are not offered specialized negotiation techniques and strategies that could heighten their chances of a good settlement and expand the range of available outcomes. Instead, negotiation proceeds along a fairly predictable and unimaginative path of an exchange of inflated offers and counter-offers, until the distance is broken down to a point of agreement.

It leaves clients facing an unexpected collapse in their expectations when they make Offers to Settle that are not as favourable to them as the initial claims and demands made by their counsel at the outset of the [court] proceedings. Very often, offers you will have to make well into the court process will be much less favourable to you than your original offer because of a series of unforeseen circumstances in your case, exhaustion of the parties, diminished financial ability to fund the balance of the case and sometimes external pressures to settle for less in order to move away from the conflict.

Litigants are usually shocked to see the sometimes insignificant difference between the original offers to settle and the final arrangements, when legal costs are factored in. Clients are often told by their lawyers at the very beginning of the case, that they have a good case based on the legal principles disclosed. What is missing from clients’ understanding is the reality of several financial and non-financial costs associated with litigation.

Interest-based negotiation (which is used in Collaborative Law and by some mediators) is currently the most brain-friendly method. It enables clients to express why they want certain things before any request is formulated, and clients are told about the clear and predictable steps to the process. This allows the amygdale to calm down and the frontal cortex to do its job – to reason and think.

Unfortunately, only a small number of separating clients have access to interest-based negotiation. Several lawyers continue to use old style approaches to negotiation such as exchanging letters in what usually turns into years of unsatisfactory paper-back-and-forth negotiation, rather than meeting in person and allowing parties to speak about what’s important to one another.

Even mediation does not always create a brain-friendly atmosphere. Some mediators continue to use an old negotiation model and have not converted to using interest-based negotiation.

Indeed, many mediators continue to request a legal memorandum from the lawyers before commencing the case, which has the unfortunate result of deepening clients’ attachments to their “positions”.

According to authors, Robert A. B. Bush and Joseph P. Folger, 5 when we ask people to take a “position”, we make it more difficult for them to find mutually acceptable solutions. They believe that “conflict generates a sense of self-absorption: compared with before, each party becomes more focused on self alone, more protective of self and more suspicious, hostile, closed and impervious to the perspective of the other person. People tend to become more entrenched in their own position.”

Then several mediators engage the parties in the “cut the difference in half” method which surely motivates people to make unreasonable opening positions. When someone makes this type of proposal, it emotionally triggers the other party. The other party’s cognitive functions will be affected and they will react in kind, which will emotionally trigger the other spouse. This creates a dangerous chain of events.

It is our duty to offer best practices to separating spouses. I advocate for wide-spread use of the brain-friendly method of “interest-based” negotiation for all negotiations and mediation, not just Collaborative Law.

When we do not offer a brain-friendly formula, we risk being the blind witnesses of clients in distress potentially making decisions or taking action from a place of diminished cognitive capabilities.

We ought to offer families a healthier alternative to marital conflict than what is currently available.

1 By Nathalie Boutet. Nathalie is a leading Canadian family law lawyer. She is also a Deputy Judge in the Small Claims Court, a local and international teacher and she is a sought after Mediator and Collaborative Law lawyer. She regularly provides opinions to the Media on current legal matters.

2 As Joseph LeDoux explained in his comprehensive book, The emotional brain; The mysterious underpinnings of emotional life (Simon & Schuster Paperbacks, 1996).

3 This is well explained in David Rock’s article: “SCARF: a brain-based model for collaborating with and influencing others”, first published in the Neuro Leadership Journal, 2008.

4 Julie Macfarlane. The New Lawyer: How Settlement is Transforming the Practice of Law (UBC Press: 2008).

5 Robert A. B. Bush and Joseph P. Folger. The Promise of Mediation, The Transformative Approach To Conflict, (Jossey-Bass, 2005 x

(1)  People can be truly heard and understood when they articulate what they want, and

(2)  It produces rich creative results that are tailored to the needs of the family.

Let’s explore how this plays out by looking at two real life examples.

1.       People have the time to express themselves and to hear the other. People have the experience of having been heard, even if they don’t always get what they want. 

In a file I mediated, when we completed our work on division of assets, the wife saw that she would leave the marriage with fewer assets than the husband because of how the law operated in their case. This was mostly because of pre-marriage assets that the husband brought into the marriage and for which he gets a credit when we equalize the assets at the time of separation.

The wife also earned less than the husband and she had a limited entitlement to spousal support due to the short duration of their marriage. She was very nervous for her future.

The wife needed extra time to process what she perceived as an imbalance in how the assets were divided.

In our session, we allowed the wife to be heard and I ensure she felt understood by the husband and by me.

I was very proud of the husband for not being on the defensive and for allowing the wife to be heard.

After the wife felt heard, she was able to hear that the assets she is left with represented roughly half of an inheritance that the husband received during the marriage which he used to pay down the mortgage on their house. Normally a person who receives an inheritance does not have to share it with the other spouse, but in this case, because of how the husband had used it towards the house, the law was such that the wife ended up benefiting from it greatly. Said in another way, were it not for the inheritance, she would be left with almost no assets.

Because the wife resolved her strong feelings about the asset division, she was able to approach the other issues such as spousal support, with more openness. This facilitated a resolution of all of their affairs and limited their legal fees. Unresolved, these feelings of injustice or anger could easily have derailed the negotiations.

2.       It produces creative solutions that work better for their family needs. The Court process, on the other hand, tends to be much more rigid and unimaginative.[2]

In a case, the wife had some entitlement to spousal support but for personal reasons, she decided that she did not want to ask for spousal support. In exchange, the husband was very quick to agree to pay the majority of the children’s expenses, programs and summer camps. Normally the wife would have had to pay these expenses in proportion to her income. This really helped the wife with her cash flow as she re-established herself in her career after some absence to raise the children.

Both were pleased with their deal, and the negotiations ended fairly quickly and without spending so much on legal fees. This kind of creative solution that really benefited these people would not happen in Court.

Mediation creates rich and personalized results because families have time to say what needs to be said, and are enabled to create outcomes that truly meet their needs.