In many states, no fault divorce is the law and adultery is not relevant.
When I work with couples as a mediator, I ask the offended party in caucus,
"would it have felt any better to you had your spouse just awakened one morning
and told you he/she didn't love you any more and was through with the
marriage?" In most cases, people admit they would still feel a great deal of
pain and would ultimately be in the same place.
As a mediator and as an attorney, I counsel parties to focus on the present and
the future, not on the past. We can only change what is before us, not what is
behind us. Healing is letting go of grievances. I find myself recommending Dr.
Fred Luskin's book, Forgive For Good, almost daily. Forgiveness does not mean
you condone the behavior. It means letting go of the grievance so one can have
peace of mind.
If a collaboration fails, just as when a mediation impasses, the negotiations
are not admissible as evidence in a court of law because they are settlement
discussions. I always tell people my ethics rules prevent me from testifying
for either of them in the event of a failure of the process. The process is
confidential. When an agreement is reached and the results memorialized, the
results are public. The discussions leading up to the result, even with an
agreement, remain confidential.
Meredith McKell Graff
McKell Graff, PLLC
Mediator and Attorney
Vancouver, WA
----- Original Message -----
From: clzatzman@xxxxxxx<mailto:clzatzman@xxxxxxx>
To: CollabLaw@xxxxxxxxxxxxxxx<mailto:CollabLaw@xxxxxxxxxxxxxxx>
Sent: Wednesday, August 25, 2004 6:57 AM
Subject: Re: [CollabLaw] Adultery in Collab Law
In a message dated 8/25/2004 9:18:01 AM Eastern Daylight Time, colleencondon
@tinklerlaw.com writes:
He wants to put
his children first, but I also want to protect his rights to have adultery
considered if collaborative law is not successful. (I need to assure it is
not considered condonation down the road.) I presume a paragraph in the
participation agreement or a side agreement on this specific topic might be
best. Any samples out there?
I do not have any direct experience with this issue, but I currently have 2
clients dancing with the idea of collaboration where adultery is an issue for
litigation purposes. My gut instinct is that you leave this out of anything
written for the collaborative process (this is my intention).
Speaking generally, if the matter moves into litigation at any point in the
future, unless there are written agreements, containing a statement or
acknowledgment that they are intended to survive into litigation of other
matters,
then the entire collaborative process keeps the negotiations "protected".
There
would be nothing occurring in the entire collaborative process that would
minimize or eliminate the "non-offending" spouse from raising the adultery in
litigation at some later point unless s/he specifically signs an agreement
providing that protection.
I think that when adultery is an issue, there are huge issues surrounding
trust for the parties. It may be very difficult to deal with the "offending"
spouse as a result. This process is really intended for healing, yes? Why not
encourage the parties to heal on the issues of broken trust, abandonment,
etc.,
with the assistance of coaches. Would that not really be the best course of
action for the benefit of the children? I hate to put this spin on it, but if
it's
really unlikely that these parties might reconcile through the collaborative
process after learning how to honor one another's needs, then at least the
encouragement to adopt healthy choices in relating to one another should be a
goal, no? By even focusing an intention to "preserve" the "right" to raise
the
adultery in litigation if the matter can't be fully resolved in collaborative
process, are we not setting an intention to the universe that this matter
will
NOT settle collaboratively, and concurrently encouraging the universe to have
these folks keep their emotional wounds open and festering? And what about
our
intentions as practitioners: by choosing this course, are we not sending an
intention into the universe to "preserve" our "tools of war"? The other
thought
that occurs to me is that if, as a professional, I'm focusing on "protecting"
the "right" of my client to raise this matter in litigation, I'm sending an
intention to the universe to defeat the collaborative process anyway. This
isn't
something I wish to do.
I may sound a little preachy here (and probably a bit redundant and verbose),
and if anyone perceives it that way I request your forgiveness -- that is NOT
my intention. But I'd like to point out, especially for those who haven't had
the opportunity to review the research results from carlMichael, it seems to
me that this process actually generates a much greater likelihood of
reconciliation (wonderful things happen when folks develop good communication
skills).
I've been predicting this particular result as a solid possibility in
collaborative process for a long time, particlularly to opponents to
collaborative
process, but also to the lay community.
If the 2 clients who've consulted with me DO choose collaborative process
over litigation, I will be encouraging them to abandon the need to cleave to
the
ideas of retribution that are inherent in the litigation process,
particularly
as to the idea of adultery (and its emotional scars). I will help them, as
best as I possibly can, to choose healing and healthy forward motion. This
is,
in my opinion, the only option truly in the best interest of their children.
Love and blessings,
Cindy
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