.From This American Life.
Listen to the audio HERE:
Ira Glass
Act Three: Let No Court Put Asunder. Now, we have this example of somebody trying to make break-ups less horrible than they are. Barry Berkman used to be like any divorce lawyer. He fought for his clients. He tried to get them big settlements. But he came to believe that what he was doing actually was not so good for most of his clients, which is kind of a big problem. Here’s the kind of thing he would see. A guy comes in, ready for a divorce.
Barry Berkman
His wife had a lot of money. They had worked out a deal. But they did it on their own, without seeing lawyers.
Ira Glass
What did they decide?
Barry Berkman
And what they decided was that in order for him– he was a musician, didn’t have that much money. But in order for him to live close to her and to be able to see the kids, which they both wanted, she was going to give him enough money to purchase a small co-op. And it was great. They were both happy as could be. They were ready to do it.
They were told to see lawyers. He came to see us. We were fine with it. We said, sure. This looks good. You did a good job. She went to see a lawyer. No way. How can you give him that much? It’s not right.
Ira Glass
That’s what her lawyer was saying?
Barry Berkman
Absolutely. For the lawyer, it was too much, because he had an argument which could, theoretically, end up giving her the greater part of her separate property. She ended up listening to the lawyer. We ended up with a custody fight as well as a divorce fight.
Ira Glass
Wait. And is that because the money fight got so bitter at one point?
Barry Berkman
Exactly.
Ira Glass
Really?
Barry Berkman
Yeah. Then, they started fighting over the kids, which they hadn’t fought over at all.
Ira Glass
Well, wait. How did that kick in? Like what was the moment where it went from being just about money to being about the kids too?
Barry Berkman
What happened was, the parties got so angry at each other that they started quibbling about everything. So if he had a gig and couldn’t be home on time one evening, she decided he was an unfit parent. If she was spending too much time with her new boyfriend, which this guy decided wasn’t appropriate, she became an unfit parent.
So the parties ended up fighting not only about money, but about the kids. Used up a good bit of her vast inheritance in the case. And in the end, she ended up buying him the same, or similar, co-op in a similar neighborhood as the one she would have in the first place. But it took a couple of years, embittered everyone. And you had to think, was this worthwhile? Did it have to happen?
Ira Glass
Adversarial style divorces still make up half of all divorce proceedings in the country. And Barry felt like most of those cases ended up like this one: incredibly expensive, taking a huge emotional toll on everybody, damaging children. So after 15 years of doing these cases like this, he started looking for a different way. And he found something called collaborative divorce.
In collaborative divorce, each spouse gets a lawyer. And then, the spouses and the lawyers sit down in a room together to work out some kind of agreement. But under the rules of collaborative divorce, if one of the lawyers thinks that the other side is being intransigent or unreasonable, not only can he not threaten to go to court, if it does go to court, he has to give up the case. He has to give the case to another lawyer to do. So the lawyers have an incentive to work everything out.
So, OK. They all sit down together, the spouses and the lawyers. And Barry Berkman says that even though the spouses enter the situation with good intentions of working everything out, the biggest obstacle he has is something very simple.
Barry Berkman
I think, often, what happens is, couples in conflict lose the ability to listen to each other.
Ira Glass
And so you find yourself, very often, saying to your own client, no, no, no, no, no, listen to what they’re saying.
Barry Berkman
Absolutely. Absolutely.
Ira Glass
And so one of the things–
Barry Berkman
Not to agree with it, but at least to understand it. That’s the whole question. To recognize that your point of view doesn’t necessarily invalidate your spouse’s point of view.
Ira Glass
You’re saying the most important thing people need to do is simply just listen to each other and try to get along.
Barry Berkman
I would say listen to each other. I don’t know about getting along.
Ira Glass
They don’t have to try to get along.
Barry Berkman
Certainly, listening goes a long way.
Ira Glass
Do things get so reasonable that you get people listening to each other well enough that people eventually just get back together?
Barry Berkman
I’ve had that happen once.
Ira Glass
What happened?
Barry Berkman
What happened was, we had people who simply couldn’t listen to each other. He became very, very busy in his own law practice. She felt she was losing him. Part of it was, they couldn’t find the time to talk to each other.
Ira Glass
But this collaborative divorce process makes you actually show up to meetings with your spouse and your lawyers and start talking. And as these two people talked, they started to see each other’s side of things. Maybe he hadn’t been around enough. Maybe she could have been more supportive.
Barry Berkman
I think the turning point came when they were talking about what to do with the house, and each one kind of recognized that they didn’t really want to be living anywhere without the other person.
Ira Glass
Usually, of course, the spouses do not get back together. When the process works, Barry Berkman says, at least they end up feeling a little better about each other.
Ira Glass
Do people ever say at the end of this process, they appreciate your help and they’re glad for the results, but they’re still full of pain?
Barry Berkman
Yeah. I mean, we’re not going to get rid of the pain. The pain is there. Long marriages, the pain is there. I think going through this process enables people to get in touch with that pain and the real sadness that they’re experiencing, which is sometimes covered up by their anger.
Ira Glass
Are you saying that at the end of this process, actually just going through the dividing of assets– which is really, in the end, all you’re trying to do– actually makes people’s anger dissipate? When you do it this way?
Barry Berkman
I think going through the process where we reach– and it’s not just the assets. The assets are usually relatively easy. Don’t forget we have the kids and the parenting and the decision making. And that’s often a lot tougher.
I think, going through the process where people reach points of understanding where maybe for the first time they get a glimpse of where the other person is coming from– And so all of a sudden, they realize, you know what? It’s not necessary to demonize this person anymore. And when they have those moments of understanding, it goes a long way toward helping them get on with the rest of their lives, actually.
Ira Glass
Barry Berkman is a lawyer in New York and on the board of the New York Association of Collaborative Professionals. Collaborative divorce, by the way, was invented by a Minneapolis lawyer named Stuart Webb.
