Welcome to Divorce Dialogues. I'm Catherine Miller. Divorce Dialogues brings expert guests to the airways to talk through your divorce questions and fill in the gray areas of that separating. From thinking about divorce, to how to behave during divorce, to what to do after, this is Divorce Dialogues.
Welcome to Dialogue on Divorce. I'm Catherine Miller, the host of the show. I'm the founder of the Miller Law Group and the director of the Center for Understanding and Conflict, and I'm on a mission to change how people divorce and help them divorce with dignity. And my guest today is David Hoffman.
David is a collaborative law attorney, mediator, arbitrator, and a founding member of the Boston Law Collaborative, where he handles cases involving family business, employment, and other disputes. David also teaches at Harvard Law School as a John H. Watson, Jr. lecturer on law, where he also teaches on mediation, legal profession, collaborative law, and diversity in dispute resolution.
He's past chair of the ABA section of dispute resolution, which he also served as the chair of the Collaborative Law Committee. David has published three books and more than 75 articles. That's a lot on law and dispute resolution. He recently did a TED Talk on Lawyers as Peacemaker.
Welcome, David. It's a pleasure to have you today. Thank you. Thank you for having me.
So I think that your TEDx talk is really inspirational. I say that as a lawyer, but I think that a lot of people listening to the show today might really wonder what Lawyer as Peacemaker sounds like an oxymoron to many people. So let's talk about that. Well, sure.
I mean, I think the place to start that topic is what kind of training do lawyers get, you know, while they're on their way to becoming lawyers. And as you know, training we get is mainly in advocacy, how to persuade people, how to essentially argue. A sociologist, Debra Tannen, talked about American culture as an argument culture. And certainly the recent presidential election is a good example of that.
The presidential debates, the kind of debates that are presented on our news programs, are all about point and counterpoint rather than about discussion, listening, trying to reach agreement. So part of my work since the time I graduated law school has been to try to figure out how to be more effective as a problem solver opposed to someone who is solely devoted to winning and persuasion. A lot of what lawyers do requires listening. And I don't think there's a single law school that offers a course on listening.
There's lots of courses on talking and on advocacy. And I'm curious what your thoughts are about that because I know you're an extremely good listener and a negotiator. I'm just curious if you agree with what I just said about law training. Completely agree.
One thing that I like to say when I teach is that I discovered early in my career that the courtroom is a very bad place to find out that the other side has a good point. And the only way to find out that they have a good point is to listen before you're in the courtroom. And, you know, and I think it's really crucial to be able to, in order to get a good result for one's own client, to listen to what's important to the other side because otherwise they're just not going to get it. Yes, I agree.
And there's another additional way in which the courtroom, I think, is really a toxic environment for resolving family conflict. And that is that part of training of lawyers is pointing the finger of blame at the other party. We're taught that we should say that the other person is wrong. They know they're wrong.
What they did is really terrible. And really to make sort of the most extreme argument that we can consistently with the facts and ethics and so forth. And that's the whole model of courtroom advocacy is that it's an adversarial process. Everybody makes the strongest argument they know how to make.
And then the judge sorts it out. In business, employment, non-family cases, there's often a jury. So the jury sorts it out. But whether it's the judge or the jury, the idea is gladiators, cross swords, strike each other with the strongest blows they know how to strike.
And then the judge will sort out the wheat from the chaff, the good arguments, from the not-so-good arguments, and come up with a wise decision. Well, I'm not so sure that that's the very best way to arrive at the truth. In European courtrooms, it's more common to have judges who do more of the inquiring and asking rather than just taking a passive role in listening to the argument. But in the family arena, this adversarial gladiatorial model is terrible because you have real human beings with real feelings who often need to get along together afterwards with kids.
And they've just been exposed in a public courtroom to harsh and often very exaggerated, in some cases quite inaccurate, criticism that causes people to feel even angrier than they were when they walked in the door of the courthouse. And I think that's really true. But I have to say, I think that you said something a few minutes ago about arguing and persuasion. And I think that, you know, I just passed my 30th anniversary of being a lawyer, which seems impossible, but it's true.
And I realized for the first time in the last year, although I think it's been a lesson that's been long coming, that arguing never works unless you're in a courtroom. Arguing does not persuade people. It's the opposite of persuading people. And that's really sort of a counterculture kind of statement to make, especially for a lawyer.
But it's true. And looking at the idea of problem solving and persuasion of doing the best, getting the best deals that you can get for one's client outside the courtroom where the overwhelming majority of cases are resolved, it's really an interesting idea. And I kind of, I think it starts on the road to this idea of a lawyer as a peacemaker. Well, a therapist that I know, his workshop, one of a couple of counseling, one said, I think he's been in practice 35 years.
He said, I've never heard of anyone who's ever won an argument. By definition, you can't win an argument because you are forceful, sometimes even angry assertion that you're right and the other person's wrong. It's met with a counterargument that, no, you're right and you're wrong. And the only thing that resolves conflict, as you say, outside the courtroom is when people are willing to de-escalate and start listening to each other.
And so in my work as a lawyer, I started looking for ways that I could use my training to become a peacemaker, someone who helps people communicate more effectively, listen to each other more effectively, probe for underlying interests, brainstorm options, come up with solutions. It doesn't mean that we forget about the law. The law is a backdrop for all of this because if we don't reach agreement, then the judge is going to have to decide. But to create a forum, whether it's a mediation or collaborative law or some other setting, lawyers can achieve their highest and best use as problem solvers.
So, David Hoffman, imagine you're a person out there listening to us talking about this and you are thinking, yeah, I don't know about that. I want my lawyer to protect me. Isn't that my lawyer's job, to protect my rights and get me the best possible result? What do you say to that person?
Yeah, I agree with that person. And I guess I have two reactions to that when I hear that comment, and I do sometimes hear it. The first point is when the client says, I want a lawyer who can forcefully and effectively help me achieve my goals, I ask, well, let's talk about your goals. Is, you know, leading this marriage in a reasonably amicable way where you and your NBX spouse can co-parent together successfully?
Is that a goal? Well, yes, it is a goal. Okay, well, let's figure out a process where, you know, we can do that. The second thought that I have when I hear that kind of comment is that part of the process, whether it's mediation, collaborative law, or some other negotiation process, part of that process is knowing what's your alternative to a negotiated agreement.
In other words, knowing what would happen in court. People can't give informed consent to an agreement without knowing that. So a big part of the lawyer's task is not only fostering communication, understanding, helping to understand interests and options and so forth, but also educating the client about what the law is, what a court is likely to do. So the client, in conjunction with the lawyer, can make a well-informed decision about whether some solution that's available at the bargaining table is at least as good as what's likely to happen in court.
And that's why I say to my clients, if we can't come up with a solution that's at least as good as what's available in the courtroom, taking all things into consideration, then we shouldn't sign a deal. So my clients, you know, hearing that, I think, usually feel like, yeah, David's got my back. David understands what I'm looking for, and he's going to work hard to make sure that we can achieve those goals. And he's not going to pressure me into signing something that's worse than that.
And if he sees me sort of yielding in ways that, you know, perhaps are not in my best interest, he's going to pull me back. He's going to counsel me, well, hold on a sec. Let's think this through. So I think what you're saying is that you don't think that alternative forms of dispute resolution should be second-class forms of justice and that people shouldn't see them as weak.
They should see them as strong. Absolutely. And I think of them as the primary forms of dispute resolution. You know, court should be a last resort.
Court is a kind of blunt instrument. And the results in court, particularly in the family law area, are highly unpredictable. One of the common sayings among trial lawyers is that they've won cases they should have lost and lost cases they should have won. And that's not something that gives clients a lot of comfort, that unpredictability of the courtroom.
But that is reality. This is Dialogue on Divorce. We're here every other Wednesday from 5 to 5.30 on WVOX, 1460 AM in Westchester and WVOX.com. I am speaking today with David Hoffman.
He's a collaborative lawyer, mediator, arbitrator, and teacher in Boston, the founder of the Boston Law Collaborative Group and a lecturer at Harvard Law School on issues related to dispute resolution. And we're talking about lawyer as peacemaker and what that means and how it works. And, David, you know, one thing that you've talked about a couple times today is this word interest, you know, for clients to figure out what their interests are. And we've also talked about things that people are interested in.
And I think that people who are learning about or working in the interest-based models of dispute resolution, that's very academic sounding. Can you help people understand what that really means? Sure. So positions, I insist on having 50-50 custody of the kids.
That's a position. And interest is why we want what we've articulated as our position. You want 50-50 custody of the kids because that's what would be best for them or because that's, you know, what would make you feel good or because that just feels like it's right and normal or because you're angry at your spouse. I mean, I don't want to sound partisan because it would be dads and moms, but let's take a stereotypical case where you have a primary breadwinner or dad and a stay-at-home mom.
That's becoming less the stereotype and less the norm every day. But there's still a high percentage of families that operate on that division of labor. And I often encounter dads who have been somewhat uninvolved, in some cases very uninvolved, in the day-to-day raising the kids, saying, I want 50% of the time with the kids, no matter how unmanageable that might be with their, you know, commuting, you know, work life. And it's coming from a place of, let's say mom is the one who decided that marriage isn't working and wants out.
And dad doesn't want to be shown to decide, doesn't want to be a second-class parent, and has a bunch of reasons, a bunch of interests that underlie, it has to be 50-50, you know, parenting. So we say, okay, so dad, you want to spend more quality time with the kids. Let's figure out a way to make that happen, you know? What are the best times for you to be with the kids?
Okay, dad, you want to be equally involved in decision-making about the kids. Let's set up a structure where you and mom are going to be talking once a week or once a month or however often it is about what's going to happen with the kids. You want to have contact with them during the week. Okay, let's set up an evening Skype thing, you know, with the kids or have dinner with them, you know, midweek and time to time.
Let's focus on, you know, what your goals and interests are and also the impact on the kids. What's the best structure here so that the kids grow up happy and healthy? Because that's one of mom's interests, dad's interests. So we go to sort of the underlying concerns and see if we can meet those.
And that's the whole model of the book Getting to Yes, which is sort of the Bible of the, you know, negotiation movement ever since 1981 when it was published. So if your listeners have not read Getting to Yes by Roger Fisher and Bill Ury, I highly recommend it. And it's an easy and short read also. Yes.
You know, one of the things that I use with my clients is these worksheets that are adapted from Getting to Yes that help people sort through what's really important to them. And because I don't think that necessarily everyone really knows what it is coming into it. And maybe that seems like a silly thing to say, but they may know that they want to stay in the house. But they haven't really thought through why.
And I think to be able to follow that why trail and figure out why is that important, what are all of the factors that lead each person to take, you know, a position or a stance about something in any negotiation, since we're talking about divorce, around the house or around, you know, working or children or whatever it is, and just sort of sort through all of the different ways that they look to themselves, that they look to their families, that they look to their neighbors and their friends and their workmates and so on and so forth. It's very helpful to do that. One of the ways that lawyers can be more effective as problem solvers and peacemakers is to be paying attention to and tuned into the emotional dimensions of what's going on. A lot of lawyers try practicing family law and decide, nope, I don't want to do that ever again.
You probably hear this too. They say, oh, no, it's much too messy. And what they mean by too messy is it's totally infused with emotional dimensions. When people are about to get a divorce, one of the things they hear from their friends and family is, you know, watch your back.
You know, he's going to take you to the cleaners or she's going to take you to the cleaners. And I've never figured out where the cleaners are, but they exist in some figurative realm where people get taken to and stripped of their belongings and stripped of their rights. And, you know, the courts don't do that. The courts play a vital and important and honorable role in all this.
They have limited resources and limited time. And that's one of the reasons why the decisions are unpredictable. And, of course, judges differ one from the other. In the area of family law, judges have a lot of discretion.
But going back to the emotions, I want to hear from my clients. So what are you hearing from your friends and family? What are you hearing from people whose judgments about you and about your soon-to-be ex-spouse you care about? And some people say, well, I want the house because that's what's normal.
That's what's right. And my friends all say, you know, don't move out. And as you point out, the house might be not the right thing. You know, it may be that the client would be better off moving out.
It might help keep the peace if it's a high-conflict situation. It may be that there's actually a better place, you know, to live. But very often, particularly when someone feels betrayed or the other person wants out of the marriage and they feel angry about or sad about being left behind, they will often operate from vindictive feelings that are unrelated to what their kids' interests are and even what their interests are. And I think we lawyers have a lot of learning to do from therapists and psychologists so that we understand our clients better.
This is Dialogue on Divorce. I'm Catherine Miller. We're here every other Wednesday from 5 to 5.30 on WVOX, 1460 AM in Westchester County, New York, and on WVOX.com. We're also available as a podcast, which you can get on my website, www.westchesterfamilylaw.com, and on iTunes.
Talking today with David Hoffman about lawyer as peacemaker. David, for our listeners, can you give your contact information if they have any questions for you or are interested in seeing your TEDx talk? Sure. I'm very easy to find, I think.
Austin Law Collaborative's website, which is blc.law, L-A-W, so you can find my contact information there and the other people in my office. And if people want to see the TEDx talk, there is a link on our website to the TEDx talk, or they can just go to YouTube and type in lawyers as peacemakers, and that'll get you to the talk. Thank you for that. And, you know, I just want to spend a few minutes talking about, and I know I'm going back to something that we talked about earlier on in this program, but that is this idea of peacemaking being weak versus, you know, advocacy being strong and some kind of cultural bias that we have to think that that's the case when, in fact, really the opposite is true.
What do you think about that? I think it takes real courage to look the other person in the eye and say, I really want to understand where you're coming from, and I hope that you're willing to open your heart and mind to hear where I'm coming from. It's not so easy for our clients to do that when they're feeling hurt or betrayed or angry. And frankly, it's not that easy for lawyers to do that.
It's not part of our training, as you were saying earlier. To really be an effective listener is something that requires skill and requires a strength, a confidence that you know where you stand, where your client is. client stands, what your client's interests are, that you can really open yourself up to hearing the other person without feeling like you have to, you know, shift from where you stand. I mean, you may decide to do that based on what you've heard.
It requires a pretty high level of confidence, I think. I agree with that. And I also think that it helps to have experience as a mediator, because I think the idea as a mediator, where you can hold both people's perspective without having to decide who's right or who's wrong, know which way you're going to go, that really does give training in being able to hear and hold both places without feeling moved. I think that's right.
The idea that a strong argument will persuade the other side, even in a courtroom setting, is, you know, not proven by experience. But also, I think there's even a style of advocacy in a courtroom where the judges expect gladiators. It can be very effective when a lawyer says, judge, you know, just to start, I want to acknowledge that there are some very important points that the other side has made, that we agree with, and list one or two or three points. Judges are not accustomed to hearing that.
The party on the other side is not accustomed to hearing that. You really get their attention that way. Right, you really get their attention, because what they now anticipate is that they're going to hear from someone who's trying to look at things in a balanced way. And even at the mediation table, especially at the mediation table, that can be an effective technique to say across the table.
You know, I think that the points that you and your lawyer are making are extremely important and credible. You know, I agree with much of what you're saying. Now, let's see if we can kind of focus in on the things that we don't agree with. We can disagree without being disagreeable, basically.
Yeah, I mean, basically, I think what you're talking about is sort of framing the question of the problem in the same way. You know what? We see the problem in the same way. You have a problem.
We need to solve it. Let's get on the same page about how we're going to do that. Roll up our sleeves and do it instead of argue about it. There's a saying, I don't know if I'll be able to find it in time, because I know your broadcast is going to end shortly, about, and this is from the 14th, from the Dalai Lama.
It says, peace is not simply the absence of war. It is not a passive state of being. We must wage peace as vigilantly as we wage war. Another comment, this one, is from Mary Parker Follett.
She says, we have thought of peace as passive, and war is the active way of living. The opposite is true. War is not the most strenuous life. Yeah, I think those are extremely powerful words.
Counterintuitive in our culture, perhaps, but true nonetheless. Yes. So, Catherine, thank you so much for having me as a guest on your program, and if people want to pursue any of these ideas about lawyers as peacemakers, I invite them to contact me at the BLC Got Law website. Thank you, David Hoffman.
It's been a pleasure having you as our guest today. Thank you.