Although the next presidential election is still almost two years away, the potential candidates are already making news. In recent weeks, several have made news, not by what they had to say, but with the things they refused to talk about. Politicians can get away with refusing to answer questions because they are uncomfortable with the impact their answers might have. Divorcing and separating parents don’t have that luxury; they often have to deal with difficult and uncomfortable issues on the spot. This article has some ideas that can help keep things from blowing up when tensions are high. Consider this (mostly fictional) text message exchange about a routine placement exchange: Parent 1: “I’m going to be getting the kids back around 3 on Sunday.” Parent 2: “You always do this to me. You know they’re supposed to be back at 1. Why can’t you just follow the schedule like you’re supposed to? Did you ever stop to think maybe I have something planned for them?” Parent 1: “I’ve never complained about the hundreds of times you’ve been late when it’s my time to have them. Why do you have to make things so difficult?” Parent 2: “You need to have them to me at 1. If that doesn’t happen, I’ll be talking with my lawyer first thing Monday morning!” It doesn’t take much imagination to picture each parent sharing their anger and frustration with the kids, and it’s well established that exposing kids to this kind of conflict can have an adverse effect on their long term wellbeing. But a few small changes in the way the parents approached this discussion could have made a world of difference in the outcome.

MEET BILL EDDY

Bill Eddy, president of the High Conflict Institute (www.highconflictinstitute.com) is a licensed social worker, mediator and attorney who focuses on dealing with people whose personality traits make it difficult to peacefully resolve disputes. While the techniques he has developed were designed to work with particularly challenging individuals, many can be employed in a wide range of situations to keep things from spiraling out of control. I first learned of Eddy’s work a few years ago at the annual Door County Workshop, sponsored by the Family Law Section of the State Bar of Wisconsin. I’ve attended the Door County workshop every year except one since 1989, and have been a presenter at it several times. Year after year, the workshop has provided exceptional continuing legal education and I have always come away with new ideas to help me serve my clients. I can safely say – without disparaging any of the other outstanding presentations I have taken in at the workshop – the afternoon I spent with Bill Eddy was some of the best continuing legal education presentation I have experienced. While my work – and Eddy’s presentation at the workshop – focuses on family law, the skills and techniques he teaches can be employed in any conflict-driven setting. I’ll focus on three of the ideas Eddy emphasizes:

• Making proposals
• Responding to proposals
• Defusing conflicts with BIFF communications

MAKING PROPOSALS

A lot of conflict can be eliminated simply by changing the way a problem is presented. Brain researchers have learned that when a person is under attack – or at least feels that way – the part of the brain that focuses on defense takes over, and the part of the brain that focuses on logical problem-solving takes the back seat. This can be contagious: the person under attack responds confrontationally, causing the other to go on the defense as well, and the conflict escalates. However, when a person is given options to think about, the problem-solving part of the brain is engaged, and the defensive mechanisms move to the back. Eddy promotes the use of asking for and presenting proposals as a way of addressing issues without escalating the conflict. Proposals, Eddy says, implies choices, and choices imply respect. When you show the other person you have respect for them and their interests, the likelihood of a finding a mutually acceptable resolution goes way up, and it keeps the defense response from kicking in. There are several ways to jumpstart the talks. One is to simply lay out the problem, as you see it, and ask the other person for their proposals to address it. Another would be to state the problem, give some proposals of your own, and then invite more proposals and suggestions. If you are the person starting the discussion, you don’t want to give just one proposal; even if you ask for more, giving a single proposal can put the other person on the defensive about that proposal, rather than focusing on solving the problem. If you can’t come up with multiple proposals, don’t put yours out there in the first communication.

RESPONDING TO PROPOSALS

So you’ve successfully identified an issue that needs to be addressed, and you’ve asked the other person for their proposals. They’ve actually responded with several perhaps (along with some personal attacks that we’ll talk about later). Now what? Well, although it may seem obvious, you need to respond to the proposals. And, although this may seem equally obvious, you have three possible responses: “Yes”, “no” or “I’ll think about it.” If your response is “yes”, that’s all you need to say. Trying to save face, providing negative feedback, or expressing reluctance or frustration isn’t helpful if you agree with the proposal. Your goal of addressing the issue or concern has been met, and any additional comments can torpedo the resolution. If your response is “no” that, too may be all you need to say. If an explanation of the reasons behind your rejection will be helpful to the other person, go ahead and provide it, but if it isn’t likely to be helpful, there’s no point to including it. And if you had one — and only one – proposal to resolve the problem, now may be the time to put it on the table, perhaps along with an explanation as to why it works better than the other person’s proposal. (On the other hand, if you think you have a better idea, you may want to wait a bit before presenting it.) In any event, be careful not to create more problems with your response; we’ll talk about that some more in the next section. Unless the situation is urgent, “I’ll think about it” is a perfectly acceptable answer to a proposal. If all you need is time, end your response right there. If the other person has information that will help you decide, ask for it, but don’t launch into a discussion about why that information is important to you. That invites a back and forth discussion about the proposal on the spot, rather than giving you the time you want to analyze the proposal. This may be another good time to put your own proposal on the table. There is risk in doing so, however; both parties may want to hold off on giving a “yes” or “no” response to the other’s proposal as long as their idea is under consideration. When competing proposals are being considered – one from each side – things can grind to a halt because the focus shifts from resolving a problem to winning and losing.

DON’T DEFEND, DEFUSE

Asking for proposals is a great way to start discussions without starting a battle, but what should you do when you’re on the receiving end of a communication that puts you on the defensive? Eddy recommends a two-step process. First, take time to think whether a response is even needed. Often, hostile communications are little more than emotional venting. While the defensive part of your brain may want to respond to the hostility with similar hostility, simply ratcheting up the conflict doesn’t benefit anyone. If the communication doesn’t concern an issue that genuinely needs to be addressed, it may be best to simply ignore it. If, however, the hostile communication does require a response because it involves a concern that needs to be addressed immediately, Eddy teaches people to formulate responses that are “BIFF”: Brief, Informative, Friendly and Firm. (Eddy literally wrote the book on the topic; it’s called BIFF: Quick Responses to High-Conflict People, Their Personal Attacks, Hostile Email and Social Media Meltdowns, and the latest edition was released in paperback in 2014). A brief response eliminates any attacks on the other person’s character and motives, and the less you include in your response, the less the other person has to argue about. And while it is tempting to defend against a personal attack, a defense often leads to another attack; a brief response without any attempt to defend against the attack is usually the best choice. A response does not have to be lengthy to be informative. Avoid negative comments, sarcasm and threats. If you have to correct factual misstatements, do it using positive, rather than negative formulations. Rather than saying “You are wrong when you said I didn’t call you about our son’s dentist appointment”, say “Just to clear things up, I tried to call you about the dentist appointment, but you didn’t answer and your voicemail was full.” Keep to the facts, and don’t share opinions. How many times have you heard the expressions “If you can’t say something nice, don’t say anything at all” or “You can catch more flies with honey than with vinegar”? While it can be momentarily satisfying to respond to a caustic remark with one of your own, this simply prolongs the conflict. You don’t have to be overly friendly, but responding in a cordial and courteous tone can pay big dividends. Recognizing the other party’s concerns can be an effective way to reduce conflict, even if you are disagreeing with the proposal that’s on the table. A firm communication is clear and unambiguous. Asking the other person to agree with you is actually an invitation to disagree, and should be avoided. Likewise, unless you genuinely need more information, don’t ask for it. And don’t be afraid to say things like “that’s all I’m going to say on that topic.” A BIFF response reduces the chance of an escalation of hostilities. A short, simple statement of your position, expressed in a friendly or courteous way will leave very little room for a hostile comeback. A BIFF response can be used to bring a discussion of proposals back into focus, or to end an exchange that has become increasingly hostile and confrontational.

PUTTING IT ALL TOGETHER

Let’s go back to our (mostly fictional) parents and see how things might have played out differently if one had used these techniques. Parent 1: “Sunday is my dad’s birthday, and I’d like to have the kids wish him “happy birthday” on Skype. He usually isn’t home from church until after 1 our time; would it be OK if I keep the kids a little later than usual? I should be able to have them to your house by 3. Or maybe they could Skype from your place.” [Parent 1 identifies issue, and presents two proposals] Parent 2: “You always do this to me. You know they’re supposed to be back at 1. Why can’t you just follow the schedule like you’re supposed to? Did you ever stop to think maybe I have something planned for them?” [Parent 2 does not respond to proposals, and instead attacks Parent 1] Parent 1: “I know I am asking you to change things, but this is really important to me. Dad hasn’t been feeling well lately, and I think this would really cheer him up. I think it would be good for everyone if Dad and the kids talked on Sunday; can you think of a way we can do that?” [Parent 1 provides a brief, informative, friendly and firm response, and asks Parent 2 for proposals] Parent 2: “I don’t see why this is my problem to solve. And besides, I need them back on schedule. They have appointments to get haircuts at 2. That’s the latest I could get for them on Sunday, and the next available time was next weekend. Why can’t they just Skype on Saturday when they are with you?” [Parent 2 is still combative, but is now discussing proposals, rather than attacking Parent 1] Parent 1: “I’ll have to think about that. I don’t know when he will be available on the weekend, but I can check. [Another BIFF response. Parent 1 may already have plans for the kids on Saturday, but telling that to Parent 2 would only result in a conflict over which parent should be required to change their plans] Parent 2 (2 hours later) “Why don’t we plan on having them Skype with him after their haircuts? I think I’d like to talk with him, too.” [By asking for time to think about things, Parent 1 also gave Parent 2 time to think things over, and agree with one of the original proposals] Parent 1: “OK, thanks. He’ll like that.” [Parent 1 stays with the BIFF responses. Parent 1 may already know whether Saturday would have worked, but there is no reason to talk about that now. The issue has been addressed to everyone’s satisfaction.]

PATIENCE AND PRACTICE

Conflict can bring out the worst in people; recent research into how the brain works seems to indicate that we are hard wired to act that way. When we are attacked, the natural reaction is to fight back. In family law cases, though, that natural reaction is counterproductive. That’s because the personal attacks that are common in family often have little to do with the real issues that need to be addressed. With a little patience and practice, divorcing and separating parents can develop skills that will help keep the focus on the genuinely important issues. And unlike elections, everyone – especially the children – can be winners when that happens.

Dan Bestul is a Wisconsin divorce and family law attorney practicing primarily in Green and Lafayette Counties. He can be reached by e-mail at bestul@swwilaw.com.