Discover the transformative power of words with our guest Karen Van Kooy in an episode that may reshape your approach to conflict resolution and legal negotiations. We engage in a dynamic dialogue, breaking down how subtle shifts in terminology can steer conversations from deadlock to collaboration. As we dissect the impact of word choice, from "proposal" to "settlement scenarios," you'll gain invaluable insights into fostering dialogue that digs into the heart of parties' needs and interests. It's a deep dive into the strategic use of language that can open up a world of creative resolutions.
Karen brings her expertise to the table, illuminating the conversation with examples from family law and beyond. We tackle the shift from impersonal, adversarial terms like 'clients' and 'opposing counsel' to more humanizing nomenclature that reflects autonomy, respect, and the potential for partnership. This episode offers a compelling look at how embracing a collaborative mindset can not only change the language we use in legal settings but also the outcomes for those involved.
Discover the transformative power of words with our guest Karen Van Kooy in an episode that may reshape your approach to conflict resolution and legal negotiations. We engage in a dynamic dialogue, breaking down how subtle shifts in terminology can steer conversations from deadlock to collaboration. As we dissect the impact of word choice, from "proposal" to "settlement scenarios," you'll gain invaluable insights into fostering dialogue that digs into the heart of parties' needs and interests. It's a deep dive into the strategic use of language that can open up a world of creative resolutions.
Karen brings her expertise to the table, illuminating the conversation with examples from family law and beyond. We tackle the shift from impersonal, adversarial terms like 'clients' and 'opposing counsel' to more humanizing nomenclature that reflects autonomy, respect, and the potential for partnership. This episode offers a compelling look at how embracing a collaborative mindset can not only change the language we use in legal settings but also the outcomes for those involved.
Welcome to Mending Fences, a podcast about effective ways to communicate and live with differences. I'm Patrice Bremner.
Speaker 2:And I'm Jen Hawthorne. We're both family law mediators and collaborative law attorneys, but our conversations go well beyond family law. We explore the personal, interpersonal, legal and cultural impact of conflict.
Speaker 1:Hi and welcome back to Mending Fences. I'm Patrice Bremner and I'm here today with Jen Hawthorne-Kelsey, as always. Hi, jen Hi. And we have a special guest today, a returning guest. We're here with attorney and mediator Karen Van Koi, who Jen and I spoke with I don't know, I don't even know when, it was maybe a year ago. Anyway, we had such a great conversation. We wanted Karen to come back and today, before we hit record, we've been talking about the importance of word choice and language in conversations related to dispute resolution, but really even beyond that, and we have a few examples of how just changing language can really really affect the framing of a conversation.
Speaker 2:Right, yeah, I think that's a great explanation of what we've been talking about. Patrice, and welcome Karen.
Speaker 3:Thank you, glad to be back, always a pleasure.
Speaker 1:So one of the we came up with like sort of four words or topics related to words that we want to touch on today, and the first one I'll just jump in with, and so some of these are specific to resolutions of divorce or family legal matters, but I think as we get into the conversation you'll start to hear that you can apply the idea, even if it's different terminology. You can apply the idea anywhere. The first one let's talk about the word proposal Is that a good place to start.
Speaker 2:I think that's a great place to start because people often walk in to a mediation thinking that they have this whole and I'll even up the ante a little bit and say an offer for the other person which proposal might sound a little softer to people. But I think that folks often have a full, positional, detailed idea of what they want to see in an agreement and the stronger they come in with this idea that this proposal is what the talking point should be, the harder it can be to have an actual conversation. So we've already started talking. But to share with our listeners what are some words that could replace proposal that you two think successfully work with clients.
Speaker 3:I would start with. The image I have when someone comes in with that word is the tip of an iceberg poking out of the water. It's like they've already gotten to. Here's my pointy, sharp proposal and to try to get people to step back and realize there's this whole body underneath all these things that you're trying to address, and to make this process work, we need the space, the time, the language to explore what's underneath all of those, what I essentially think of as positions. I mean you had said that. So where is a proposal a proposal and where is it a position statement is the first way in for me when I'm talking with my medium nation clients or if I have a collaborative client that comes to me and says here's my proposal.
Speaker 1:So I'm weighing in on proposal as a word I shared with you. I think already that, coming from a litigation background, proposal to me was an improvement over demand or offer. So I thought proposal it sounds a little bit lighter, like I'm just proposing this, I'm just putting it out there, I'm just proposing it. But I've learned that and I really like the way you described it, karen is that it is just the tip of the iceberg because there's a lot underneath it. And now I've switched to talking about settlement ideas or settlement scenarios or sharing settlement thoughts so that it can feel like and I've been able to find ways to work it into conversation, so that it can sound like part of a larger conversation.
Speaker 1:We've not reduced something down to a proposed term sheet, you know, or something, but so it's not the pointy tip of the iceberg, it's. Here are some thoughts about settlement and usually, at least in a collaborative setting or a semi-collaborative setting, we might even include some rationale Like here's what I think would be a good idea and here's some thoughts about why and on that topic I have been successful in cases over the last couple of years doing that and working with the other person's attorney ahead of time to vet what I'm sharing so that they can see like, oh, some of this is going to be hard for my client to look at. Some of this will be really challenging. Let's find other language and come up with a written idea that is more palatable, maybe more digestible and opens conversation, right?
Speaker 2:Like, as I hear the word proposal I think of, instead of like the tip of the iceberg. What pops into my head is like a written document, but there's such a strong urge to write a counter proposal to, and then it's exactly what Patrice was just saying and, karen, you as well. You miss all of that discussion about everyone's needs, interests and goals. You miss the opportunity to understand those, you miss the opportunity for option generation, brainstorming, evaluation as a group, and so you get so stuck in that positional back and forth potentially that I try to use the word, and I'm not always successful, for sure. I try to use ideas, thoughts and, patrice, I try, if I'm working with another attorney, to do exactly what you're suggesting and put in as much of that underlying quote unquote, why explanation as I can for why? Whatever my client is suggesting is there? What's their rationale? No, that way there's lots of space for not just talking about the actual idea but for option generation.
Speaker 3:Yeah, that leads me to two separate thoughts that I want to put out there. One is do you have a go to example that you use with people that you're speaking with about this process I would say clients, but we're going to discuss that one too soon where you show why we try to move away from positions to option generation and ideas. So, for instance, there's the two kids fighting over the orange and learning One wanted the skin and one wanted the juice. Or I used to back in my litigation days, talk about things I had seen when people really said I want to stay in the house, and then you would come flesh out well, why is that? And you would come to understand and everyone would come to understand it was more about stability and ease of access to the community of friends that the children had and that there were other ways that those goals could be reached. But I find it challenging in the beginning of a process to get the participants to step back and understand the value of all of that.
Speaker 2:In fact in case.
Speaker 3:I just want to put out but we don't have to go to yet is, and even within the other ideas I mean other the list I had ideas, scenarios, thoughts, options and I realized even then some of them trigger option is kind of binary, you know. So really looking for languages that don't trigger any binary reaction.
Speaker 1:It's a process. I mean, it's all. It's a process and what's going to work in one situation won't work with the next set of people, or what works early in the process might not work later. And I think it's about being adaptive and always checking in with yourself, Like, have I slipped into positional framing? Have I slipped into? And I do it all the time and have to catch myself like I'm. You know, I have a situation right now or I'm getting ready to draft something and I'm realizing that I'm tempted to say well, we can do it this way or that way, pick one. And it's like, because I want to start, there's a tendency to want to start to narrow things down when we're still maybe needing to expand thinking. So I think it's just about being really conscious of it.
Speaker 2:What I was going to say a minute or so ago is that I think that my favorite example is one that you were starting to use, karen, which is house the house versus a home. And most of the time when people are saying they want to keep the house, if you get into those reasonings underneath, it's often the idea of home and that is so hard to leave for most people and there's so much fear when there are still children in that home that the children will have a hard time leaving that home and coming to any other location for living. But talking about that you can. There's so much room for talking about what makes a residence a home.
Speaker 1:If we can, I would like to hopefully get to have enough time to talk about a couple other terms. Yeah, okay. So another one that I think is really important for people to start to hear differently is, when we're talking about kids, the use of the term custody, which to me sounds like it sounds like we're talking about a prisoner.
Speaker 2:To me, yes, I think custody doesn't have as much of a trigger in my head as the word visitation. And before, karen, I don't know if you just want to share what you were saying.
Speaker 3:before we started recording about visitation, I thought it was perfect Very early on when we were shifting, when the courts were actually shifting away from the concepts of custody I had. One particular judge would always say the only people that have visitation are prisoners and hospital patients. That's when visitation occurs I do not want to hear about a parent having visitation. And that always just really stuck with me and grounded me in expanding to parenting plan and decision making around children. And what I find not challenging, but I find it is part of the process, is describing that shift to the people that I work with, because the language and the statutes that we're working with still say custody, legal custody, physical custody.
Speaker 1:Right and so just to frame it so people can hear, the difference is that that is, I think, for a lot of people still what sounds like the normal language and it doesn't sound wrong. It sounds like well, we're, you know, we need to determine custody, like there's a complaint for custody. There's in the Massachusetts court. You can bring a complaint for custody. If you're unmarried and you're and you want to establish your parental rights, you have to bring a complaint for custody. But, as Karen said, over years and it's been many years now we really have moved from physical custody to parenting plan and we've moved from legal custody to decision making and it is a conversation that's still one of the first conversations we have with folks, even after all these years. It's hard to let go of and, as a child of divorce myself, many years ago I was the subject of a visitation schedule, you know, and I had visitation with my other, my non custodial, my non custodial parent, the lesser parent.
Speaker 2:Right, and that's exactly why those words matter. Right, because what I often share with parents is it doesn't you're a parent all of the time whether your child is present or not, and I use this example, actually, I think, last week, with clients. If you have a married family, a family where the marriage is still intact and one of the parents travels for business and is gone much of a week, nobody ever suggests that that parent is not a parent while they're on their business trip. Yet for some reason, just because children are sleeping in another house, we change this language to custody and visitation. In all of these words Still about parenting You're just managing who is making the decisions and when, and the big decisions versus the day-to-day decisions. That's what's really being talked about.
Speaker 3:Okay, let's go to the other one, because I'm so curious about this one. I always refer to people as my clients.
Speaker 2:I clearly do. I have done it, I think, at least twice or not three times already on this podcast.
Speaker 1:Yeah, I started moving away from it over the last couple of years and it took me a while to even start to question why is that becoming uncomfortable? What don't I like about client? I finally realized that it's referencing my business relationship to those people, whether they're clients in a mediation, where there are two of them, or an individual client who I'm representing or working within a collaborative case. It's a reference to my relationship to them and it's not about their autonomy or agency in the process, which is what I want to foster. I've started thinking of them as participants and trying to use that language more and more. It's about them being in the process on their own steam and participating, rather than in relation to me.
Speaker 2:Yeah, my internal reaction when you say that is yeah, I use client all the time and you're totally right, that is describing my relationship, or the other professionals relationship to the folks we're working with. They are participants in the process. I'm wondering if we could go even further as a community and just they're also parents, they're also spouses or not. Maybe they're former spouses, but they have relationships to each other too. That has nothing to do with the process. Should we potentially start talking about and trying to internalize for ourselves, just talking about their status as human beings and parents and spouses and whatever relationship we're helping them create as they go through the process, so co-parents or things of that nature?
Speaker 1:Yeah, I definitely. When I'm drafting an agreement, for instance, I definitely reference them either by name or by parent, sometimes by spouse. But you're right, I don't do that as much in conversation.
Speaker 2:Yeah, I try to do the same in drafting. Karen, what were you going to say?
Speaker 3:I was just going to say. I've been noticing in my separation agreement I often will have name, name, name parenthesis hereafter and then the person's name, or the wife or the husband. I leave that in and yet I never refer to them as that In the document. I always use their first name. So I need to go back and it's just so ingrained.
Speaker 1:Yeah, I ditched husband and wife a long time ago in favor of spouse or parent. But yeah, I don't know, jen, what it would take as a community to start to well. I think it's happening in parts of the community, right.
Speaker 2:To change that language? Yeah, it is, and even the courts. We have a sample list from the Frisk Court, which is the Family Resolution Specialty Court, which unfortunately for those of us in Eastern Mass only exists in Western Mass right now. But it had shifted in the court process to try to soften the approach to parenting and to take the court terminology in part out and just to give more decision-making power to the parents as they're going through a divorce very much like what we are trying to do in this out-of-court world that we're talking about all of the time. And so we were lucky to have someone present at an MCLC conference for us and share this list of language with us. But I think as a larger family law bar across the board, all attorneys could benefit from trying to make this language shift and I think it would benefit society at large.
Speaker 1:And I would go further and say you know, listening to how you use language throughout your life and I've become conscious of you know, when am I sounding positional? When am I sounding divisive, unintentionally or exclusive? When am I taking a stand when I don't need to? And it could be, you know, in any setting. So we've talked about three terms. I don't think we have time for the fourth. We are a little bit over time, but do we want to touch on it really briefly? Sure, so traditionally in litigation, for those of us who litigated, we were attorneys and we had opposing counsel, and for me, that softened over the years to the other attorney and I still stumble over it. I still stumble over it in a lot of settings. How do you talk about it?
Speaker 2:I try to use other attorney or if I'm talking directly to the person I am representing, I will say your spouse's attorney, or, once there's an established relationship, I try to just use names to take that out. Because I think, although in the collaborative process and in mediation representation we're wearing our attorney hats, my personal opinion is that the people that do a really great job at this work still think of we think of ourselves as a team when we are working on a case and our collective goal is to make sure our individual clients are well represented but to help them get to and I've used this phrase a thousand times a practical, livable agreement. And that happens better when you think of the person on the other side as your teammate in getting your clients collectively and say I can't get away from clients to a practical, livable agreement.
Speaker 3:Yeah, I'm definitely going to have to circle back with you on clients because I attached to that. But with me other parties' counsel is usually what I say and I always liked that because I could still use the shorthand OPC that I used to use a lot opposing counsel. But I too try to use the name, or say the spouse's name and their attorney or their counsel.
Speaker 1:I want to say that I've made a concerted effort over the last couple of years to really change some of this language, particularly around proposal and client, you know, and all this, and I really think it's helped. I think it's really made a difference in my communication with my colleagues, with my clients, and just the way I'm looking at it. It's changed the way I'm framing my thinking. I think it's effective.
Speaker 2:Yeah, I agree. I'm sure there's a whole bunch of other examples we could think of to talk through, but for now I think this conversation has reached its end. But we're definitely going to keep talking and thank you, karen, for joining us today. As always, I'm sure you'll be back for round three at some point. Thanks Karen, thanks Jen, well, everyone, thanks Karen.