Comtinuied from Part 1.

, empathy is a skill set and the core of empathy is perspective taking. With regard to perspective-taking and empathy, Dr. Brown says the following:

Perspective taking is listening to the truth as other people experience it and acknowledging it as the truth. What you see is as true, real and honest as what I see, so let me be quiet for a minute, listen and learn about what you see. Let me get curious about what you see. Let me ask questions about what you see.

Empathy reduces shame, whereas sympathy exacerbates it. There is a huge difference between feeling with someone and feeling for someone. Shame causes a person to believe they’re alone. Through empathy, we cause them to realize that they are not alone, which is why it is the antidote to shame. As Dr. Brown said in her book, I Thought It Was Just Me, 'In most cases, when we provide sympathy we do not reach across to understand the world as others see it. We look at others from our world and feel sorry or sad for them. Inherent in sympathy is ‘I don’t understand your world, but from this view, things look pretty bad.'

In other words, curiosity is central to perspective taking. 

That being said, since perspective-taking is the core of empathy, those who perspective-take as Dr. Brown recommends, would understand the people with whom they are empathizing.

I’m at a complete loss as to how gaining an understanding of their client through empathy would have the possible consequence that clearly concerns Harvie.

It’s true that "’Compassionate empathy’ or ‘empathic concern’ enables us to ‘not only understand a person’s predicament and feel with them, but become spontaneously moved to help, if needed."

However, helping a client and wanting “to make them feel better” are two completely different things. 

Talk about lawyers losing perspective, have you heard the saying “Everything’s a matter of perspective?”  If so, if a lawyer understands their client, is that enough perspective?  How about if the lawyer also understands the opposing counsel?  Is that enough perspective?  What if the lawyer understands the opposing party, as well?  Is that enough perspective?

I ask these questions because on December 16, 2016, I led a discussion at a monthly professional networking meeting.  The topic was as follows:  “When working on a project, have you found that understanding perspectives other than your own is valuable? If so, why and what do you do to gain such understanding?”

What I found interesting and not at all surprising was that the only perspectives people mentioned were those of their clients, and, if lawyers were involved, possibly those of their opposing counsel and the opposing party.

Nobody considered other perspectives. I then mentioned a program I had given to lawyers earlier this year.

I asked the lawyers whether those present believe(link is external) that laws are fundamentally fair.  Quite a few attorneys answered, ‘Yes,’ while other asserted that all ‘American laws are fundamentally fair.’  Yet, I reminded them that laws vary greatly from state to state, and country to country, and change over time.  I asked them, ‘What the hell are ‘American laws,’ and how can they be fundamentally fair if they vary from jurisdiction to jurisdiction?’  Everything is a matter of perception, I suggested.  We tend to get accustomed to the laws and culture of the jurisdiction in which we live, and to confuse comfort with those laws, with our innate sense of fundamental fairness.”

How about the fact that legally competent people making informed decisions can agree on anything they want that’s not illegal or otherwise in violation of public policy?

With that perspective, please take a fresh look at Harvie’s advice. 

It’s all about the “family law” in any given jurisdiction and the manner in which that law is interpreted and applied by courts or attorneys negotiating agreements within the context of what may or may not happen in court based upon the “family laws” in existence in any given place and time. 

If attorneys took the time to truly understand their clients, would they be advising their clients to resolve their situation in accordance with the “family law”, if their clients’ interests, needs, values and goals were better satisfied by doing things differently, yet in a manner which is not illegal or in violation of public policy? 

Not doing things in accordance with the “family law” does not necessarily make it illegal or in violation of public policy.

From my vantage point, “too often I have seen good lawyers, lose perspective and their ability to provide prudent advice” and it’s hardly just “because of their own anger and empathy.”  It is, however, the result of a lack of perspective.  

As additional perspective, how about the fact that "divorce of parents" is 90 ‘life changing units’ for non-adults?  Remember, as stressful as divorce is for adults, it is only 73 'life changing units.'  

"Adverse childhood experiences (ACEs)(link is external) are a significant risk factor for substance use disorders and can impact prevention efforts.

Adverse childhood experiences (ACEs) are stressful or traumaticevents, including abuse and neglect. They may also include household dysfunction such as witnessing domestic violence or growing up with family members who have substance use disorders. ACEs are strongly related to the development and prevalence of a wide range of health problems throughout a person’s lifespan, including those associated with substance misuse."

Parental separation or divorce has been found to be an "adverse childhood experience."

How does essentially forcing a divorcing couple into a box with the dimensions of the "family law code", when it doesn't adequately satisfy their needs, interests, values and goals, impact their satisfaction?  How does handling their situation in an adversarial process designed on a win/lose paradigm impact the level of conflict between them?  How's that play out with regard to their ability to co-parent, if they have children together? 

As I have written elsewhere:

"Like it or not, if there are children of the relationship(link is external) (regardless of their age), the family still exists after the relationship ends.  The manner in which you end a relationship determines whether your family will be functional or dysfunctional from that day forward."

The research clearly shows that "it is parental conflict(link is external) and not divorce itself that harms children."  

So, where's the compassion, the empathy, or even just the perspective?

Always remember, "Everything's a matter of perspective."

Mark B. Baer, Esq. is a mediator, collaborative law practitioner, conflict resolution consultant, co-author of Putting Kids First in Divorce, and co-founder of Family Dynamics Assistance Center. He also regularly writes for the Huffington Post and Psychology Today.