Parties are more likely to adhere to mediated decisions than to judicial ones. That adherence likely arises from two characteristics of party decision making: autonomy and specificity.
Dan Simon, Tara West
NOTE – Divorces in general and custody disputes in particular can involve complex points of law, and have far-reaching consequences for all concerned. This article is not legal advice, and is designed to be a specialized look at the conflict implications and available strategies and solutions from that specific perspective, and should be read in conjunction with the advice obtained from the reader’s legal representative and other involved professionals during such proceedings.
1. Introduction
As much as we all seem to know stories of children being used as pawns during child custody battles during divorce proceedings, the awful incidence of such abuse continues. It seems as if some people going through a divorce can see, and condemn, such practices in others, but that it becomes increasingly difficult to detect and prevent such behaviour in oneself. The rights of children, manifesting in everyday realities such as access and visitation, regular maintenance payments, provision of healthcare, schooling, clothing and so on, have all been considered and decided upon by our courts, in a range of rather sophisticated judgments that should be able to guide us through these complex and emotionally difficult events.
A system comprising of trained legal personnel, the offices of the Family Advocate, social workers, mental health professionals and several other options all provide the involved parties, including the children, with sufficient support to navigate these important decisions and processes, at least in the theory of the matter. Why then do we have so many difficulties with some of these processes? This article examines the custody disputes from a specialized conflict perspective, and we consider some of the conflict causes and drivers, and we discuss a few conflict strategies that parties going through these processes can hopefully apply in everyone’s best interests.
2. Understanding conflict causes and the environment
Divorces are more often than not microcosms of our worst fears, hates, insecurities and emotions. In the space of a few weeks or months, parties are required to deal with intense pain, feelings of betrayal or failure, loss, uncertainty, the fear of financial insecurity, a complete overturning of their world, to name but a few of the more obvious challenges. These events can be relatively unexpected, they can be traumatic, and if the truth be known, most of us are really not trained in any meaningful level of conflict resolution. Many of these interlinked conflicts play out at a deeply emotional level, and are experienced as threatening, even existential risks and attacks. An essential early conflict skill that we can internalize is to be able to distinguish between a conflict cause and a conflict result or symptom.
If we continue to deal with a conflict symptom we get stuck in harmful patterns and cyclical conflicts, without ever or efficiently understanding and managing the cause thereof. In our present focus, a spouse that seeks to use the children as a tool of domination (the conflict symptom) may be motivated by other causes, such as personal fears and insecurities, past traumas, distrust, considerations of revenge and so on. Until such time as you correctly identify the cause, the symptom will remain. Correctly identifying, and then resolving, a conflict cause in custody disputes at an early stage can save the parties, obviously including the children, years of harmful and unnecessary conflict.
3. A few practical conflict strategies
It is always best to have a focused and specific look at any specific conflict, as small nuances, histories, skills or limitations, and the dynamics of the parties’ relationships can make meaningful differences in conflict assessments and strategies. Where possible, make a suitably conflict expert a part of your team during the process. Other than that, we can consider the following prevalent and more general conflict strategies that may be useful.
3.1 Understand your own agency and control
Throughout this alien, unpleasant, uncertain process you need to bear in mind the fact that you remain in control of important aspects thereof. Delays, legal limitations and other unforeseen events may cause a feeling of being dragged behind the process, but remember, always, that you remain in control of the level of knowledge that you gather, you remain in control of your responses to developments and provocations, and as much as you should be advised as to your options, risks and so on, you remain in control of those decisions within the parameters of that conflict. It is perfectly understandable to sit back and outsource this reaction and decision-making process to others, some of them that will have your best interests at heart, but you and your children will continue to live with these decisions, so where you have that control, exercise it responsibly, and stay on your feet.
3.2 Keep the correct perspective
It is nearly inevitable that you will be drawn into the minutiae of these processes and decisions. Where do we live from now on, what does that cost, what will my monthly income be at the end of this, what does it cost to get there and a thousand other important, necessary questions. All of these issues require your full attention. You will however have better results if you can bring a few practical skills to the process. Teach yourself a few basic conflict management skills, through a conflict coach, distance learning conflict courses, or even an appropriate conflict book or video series. Understand the golden thread that runs through all of the legal jargon, processes and battlegrounds: human conflict. This will help you to see the bigger picture constantly, take things less personally, be able to continuously access your best thought processes and decision-making skills, and definitely have better conflict outcomes. A party that adds these skills to the process has a measurable strategic advantage over those that do not have these skills.
3.3 Beware the quick compromise
This advice may come as a surprise. Is a quick resolution of a divorce and custody battle not desirable? Yes, it is, but only if all of the important considerations, especially those involving the children have been properly aired and considered. One or more of the parties in divorce and custody/access proceedings may be conflict avoidant, may wish to curtail costs, struggle with uncertainty and/or already have details of their new life that need attention and focus. This often leads to compromise agreements that are hastily cobbled together, and repented on at leisure after the divorce. As an absolute minimum, get comprehensive advice on not just the answers that you are expecting, but on the questions themselves. How does a monthly maintenance payment get increased or reduced, what happens if I lose my job, what happens to custody if I get promoted to another city, or wish to leave the country?
In conflict studies this is known as the differentiation phase, where we skilfully and adequately air the questions and problems, we unpack options and obstacles and, at least, understand the fence lines of the problems and possible alternatives. Slow down sufficiently for you to arm yourself with this information. Be very careful of a quick compromise. A compromise is often the giving away of something that we would have preferred to keep. It is often also an unskilled, lazy, rushed decision based on short-term considerations. Here the balancing act requires of you not to unnecessarily delay or drag out legal processes (which is to you and your family’s severe prejudice in the long run), but also see to it that the results of the divorce process is adequately considered and implemented. Ensure that your legal advisor is competent in handling this difference, and that creative, realistic solutions are crafted as opposed to those “meet you in the middle” approaches.
3.4 Manage the conflict escalation
Even the most basic and civil divorce and custody process will have their stages and changes in emotional reactions and opportunities. Parties may not be synchronized as far as their understanding and acceptance of various realities are concerned – loss, despair, rejection, economical dependency or risk, important changes in parental roles and so on. This simple observation often causes that lack of alignment to lead to long, drawn-out divorces that financially and emotionally scar people for many years, processes that are in any event most probably going to be settled at the eleventh hour at the doors of the divorce court, often on terms much less advantageous that the parties may have achieved much earlier on. Understanding this misalignment is one thing, skilfully managing it is another.
Either get expert advice on this aspect, or try your best to keep an eye on some of the tell-tale signs that you can use to your best advantage. Look out, as examples, for repetitive patterns in the conflict, consider disruptions of expectations (arrange an in-person discussion between the two parents, for example, and if prudent), and understand that timing and sequence are crucial tools to be used in these conflicts. The way we present offers and solutions, how and by whom they are made, when they are made – these are all critical considerations in being good at managing this most important personal conflict.
3.5 The value and power of mediation
Most of us have very little or no experience or understanding of mediation as a powerful, cost-effective conflict resolution tool. Often, in practice, where it is used or made mandatory as an early process by institutions such as the legal process, it is merely a box-ticking exercise, another power-play in punishing, scaring or manipulating “the other side”. Skilful mediation is your most powerful conflict tool in this entire process, although there may be those whose inclinations or interests may try to convince you otherwise. When done correctly it is a quick, cost-effective conflict solution that leaves the power of creating their futures in the hands of the parties themselves, as opposed to largely leaving it in the hands of the legal process, a decision that often leaves all parties very dissatisfied on a number of the most important aspects. Insist throughout the process that an effective process of mediation, preferably by an independent, external mediator be attempted, if need be more than once and at different stages of the process.
Most experienced mediators will have no objection to your legal representative playing an active role in attending and assisting with the mediation process, and skilled (as opposed to obstructionist practitioners) are a wonderful asset in that process.
3.6 Relationships
I am not in favour of keeping broken marriage relationships together when every reasonable avenue of resolution or repair has been attempted. This is an intensely personal decision for the parties to make. From a conflict transformation perspective though, I have to point out that the way that you conduct yourself and manage your decisions during the divorce and custody process plays an enduring role on your future relationship with your ex-spouse, the children and, often, other related parties. The instinct to hurt, punish, destroy, to protect your children and yourself are all perfectly normal and understandable, and these emotions should not be repressed or wished away, but they can be used as useful energy in effective conflict resolution, where a responsible eye is kept on some form of future amicable relationship, even if it is just in the interest of the practical realities in what is now two homes where provision must be made for the best interests of the children.
This has nothing to do with being soft on the real or perceived transgressions of the other party, or to minimize the pain of these events, but to ensure that you are efficient in dealing with the long-term conflict outcomes involved here. Lay down your well-considered rules, apply acknowledged best practices and advice, ensure that boundaries exist and are understood, but stay true to your own sense of self, your integrity, and the real interests of yourself and the children, as opposed to thinly disguised feelings and motives of revenge, retaliation or bullying. Our courts have, in recent years, started to take a very firm view against such behaviour by parents (and legal practitioners), as your own advice will no doubt confirm. This is in your best interest, and the interests of the children, and should not be seen as weakness or undue concessions to the other party.
3.7 The children have the right to be heard
In a contested custody and access dispute there will be a range of advisors and processes involved. Bearing in mind these conflict strategies, make full use of those processes and advice. Our love for our children, our protective instincts, our fear of the unknown can often benefit greatly from the advice and perspectives of experienced and skilled practitioners involved. Ensure that the wishes and perspectives of the children are responsibly understood and factored into the ultimate solutions where this is in their best interests. Be careful not to appoint yourself as the sole arbiter of those considerations. If your sense of those solutions are correct they will be supported by practitioners and the system itself.
Depending on the actual dynamics of the involved child(ren), such as age, maturity, education level and so on, they should be updated on relevant developments and given an opportunity to express their innermost thoughts. They should have a workable understanding of what is happening and what lies ahead. Remember that, in a very important way, you are teaching them important lessons on how to deal with painful conflicts in their own future lives and relationships. Harm done to them at this stage inevitably manifests as poor conflict skills later on in their later, adult live and relationships. 4.
Conclusion
Divorces and their impact on the children involved are quite justifiably seen as some of life’s most traumatic, difficult events to be encountered by some of us. Economic, personal and other consequences follow the involved parties for years, decades after the conclusion of the divorce. Adding the above specialized conflict strategies to such an event, if you or someone close to you must go through such a process, will hopefully ensure significantly better conflict outcomes, for you and for the children involved.
Summary of main sources, references and suggested reading
1. For a very illustrative example of the harm that poor conflict skills and parental decisions can bring to children in these process, see for example the excellent 2022 article by writer, photographer and producer Guy Oliver at Children are the losers in parental alienation – The Mail & Guardian (mg.co.za)
2. Dangerous Magic: essays on conflict resolution in South Africa, by Andre Vlok, (Paradigm Media, 2022) especially Chapters 1, 2, 7 and 14. Available from the publishers, or at Amazon.com: DANGEROUS MAGIC: Essays on conflict resolution in South Africa eBook : Vlok, Andre: Kindle Store
3. Relevant articles for your consideration and their source material can be found at www.conflict-conversations.co.za
(Andre Vlok can be contacted on andre@conflictresolutioncentre.co.za for any further information)
(c) Andre Vlok July 2024