Stripping away emotions and focusing on the “facts” seems like the only approach. But is this the right approach for her client? Is this lawyer conflating “facts” and legal evidence?

“I don’t deal with emotions; I deal with facts!” – the father’s lawyer shouts from across the room during a recent mediation.

To her, and to many others, stripping away emotions and focusing on the “facts” seems like the only [logical] approach. But is this a client-centric approach? Is this lawyer conflating “facts” and legal evidence?

Most times, a client’s facts are rooted in emotions whereas legal facts are rooted in written rules of law.

Emotions are key to human functioning and decision-making; they are the main ingredient in formulating and driving individual facts. In divorce or separation, it is these facts that matter most; and, they are not the same as legal rules or evidence. Operationally, even, they have two distinct fact-finding processes. Most times, a client’s facts are rooted in emotions whereas legal facts are rooted in written rules of law.

“For men decide far more problems by hate, or love, or lust, or rage, or sorrow, or joy, or hope, or fear, or illusion, or some other inward emotion, than by reality, or authority, or any legal standard, or judicial precedent, or statute.” – T. Cicero

Cicero’s statement holds true today and continues to highlight the power of human emotion in the decision-making process, especially in an emotionally charged event such as separation or divorce.

Marital dissolution is disruptive of emotional, cognitive and physiological systems. It depletes parents and children of critical reserves necessary to respond in a functional manner to stressors; and it increases the risk of domestic violence. The re-organizing of these internal systems is and will inextricably be connected to their individual hopes, fears, frustration and other inner factors. Evidently, applying a narrow legalistic frame would frustrate this vital mechanism, and thwart with families’ decision-making in divorce or separation. Ultimately, the sustainability of any settlements will be seriously jeopardized.

It would be careless to remove emotions when working with separating families

I am not suggesting mediation deals with the depth of human emotion. I am however cautioning that it would be careless to [attempt to] remove emotions when working with separating families; or when representing clients in mediation. It would be like removing the family law rules and still expect judges to make decisions in legal disputes.

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