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Conflict and Family Litigation: Part 2 - The Role of Narrative

In the second of three articles examining conflict in matrimonial litigation Neil Denny, of Mogers Solicitors, looks at the role of narrative theory as a means of understanding the source of conflict

image of Neil Denny, solicitor, Mogers

Neil Denny, Solicitor, Mogers

This is the second in a series of three articles looking at how conflict theories operate within the field of family law and looks at narrative theory as a specific example of how a conflict theory can be seen operating in practice. 

Narrative can be seen as the idea that we experience our lives as a collection of events which we then recount through a process called 'Storying'. In other words, we retell our experiences as stories.

It is important that we are clear that when we refer to stories in this way, we do not do so in any trivialising or pejorative sense. We do not use the word story to suggest fictionalised versions of events, nor do we use the word to minimise the impact of the experiences being recounted. The language of 'storying', instead, labels the process of communicating the experience. It does not address the experience itself.

This article looks at three elements present in all narratives: logic, characterisation, and language.

They, in turn, are the key to understanding how the application of narrative theory can assist us in helping our clients.

Think of any story you have ever enjoyed or told.  Think of the most absurd or the most fantastical.  Every story has its own inherent logic.  That logic is determined by the story itself and the story’s own rules.

Take the Harry Potter series for example.  It is completely illogical on any external level and yet, within the confines of the books or films, it has an undeniably strong internal logic about it.

We quickly come to accept the norms, the physicality of broomsticks, the rules and tactics of Quidditch.  They are all acceptable within the narrative structure of the world of Harry Potter.

For narrative logic to succeed in “suspending our disbelief” it has to exclude other realities.  I found it peculiar to see real product placement in the latest Batman movie, for example.  All of a sudden that disrupted the narrative of Gotham City and tried to bleed it into our day to day world.

Narratives therefore have a pervasive logic, created and contained by the story itself that drives our expectations of what is appropriate.  It cannot permit other logics to enter the imagination.  If other logics do enter then they would undermine the hold that the narrative has upon its audience.

To the participant, our clients, their narrative is absolutely logical to them.  It is obvious why things are turning out the way they are and it can seem impossible to suggest that there might be another reason.  The logic will also drive their expectations of what will happen next.

Take the situation when you receive a reasonable offer from the spouse or partner’s solicitor which is then rejected out of hand by your client. That reaction can appear to us, or our colleague acting for the partner or spouse, to be irrelevant or disconnected.  We need to be able to understand, or tap into, the narrative logic by which our clients are working to be able to communicate with them.

In a recent case I was working on negotiations were getting stuck on the narrowest of points.  It was easy for the lawyers to dismiss it as a triviality but it was crucial to the client and integral to the narrative that they were operating in.  It was only when we were able to acknowledge that logic that we were able to deal with the obstacle in a way that was coherent to them.

Logic, in turn, carries progression, or what might be called the narrative arc.  As we read a story we expect one thing to follow on from another.  X happens because Y preceded it.

We need to ensure that we do not dislocate the work we do for our clients from narrative progression.  If we try too hard to take our clients to settlement, for example, without addressing the logical narrative progression in between, then we lose our client.  Their narrative has become disjointed.  Perhaps this explains the bewilderment of the client coming out of a final hearing where a judgment has been imposed upon them.  All of a sudden the narrative has been brought to the most abrupt of conclusions but without the progression leading to it.

And yet we are not to despair in the face of narrative.  If we are able to grasp the concept of logic then we can start to dislodge or undermine the grip that logic has upon our clients.  As we work with them, we can influence the narrative progression or arc towards a more constructive, satisfying conclusion than a court hearing can provide.

Characterisation and role within narrative
Just as all stories have their own inherent logic and progression, they also have characterisation.

There is a model called the drama triangle, originally posited by psychiatrist Stephen Karpman in the mid 20th century.  It suggests that there are three points to the triangle within any narrative, namely the victim, villain and the rescuer, or intervener.

The curious thing is that very often people will perceive their narratives from a victim perspective.  The role of victim brings with it a degree of blamelessness.  It is not our fault and, instead, we are the victims in our stories.  This assists greatly in the recounting or retelling of our stories.  It helps to engage the listener who comes to side with, or even pity, the victim.

Not surprisingly, there are problems with victimhood.

Firstly, victimhood is a passive role.  We are done to - and hard done by.  We cannot act ourselves but only react.  We cannot take initiative.

The second problem is that every victim needs a villain.  You simply cannot have one without the other.  For our clients the villain is inevitably their partner or spouse.  Even if they do not verbalise that explicitly, the juxtaposition between victim and villain is implicitly clear.

Not surprisingly the partner who risks being cast as the villain of the piece is going to rail against that.  Instead they often rush to wrestle the victim mantle for themselves.

In December 2007 there were a couple of corresponding exposes in the Daily Mail and the Daily Express.  They told the story of a defunct relationship between Helen Mirren on the one part and Michael Winner on the other.

Helen Mirren was revealing how she had suffered as a result of what she termed as an abusive relationship.  Michael Winner had clearly been advised of this expose as his version of events, or his side of the story to use the common vernacular, was simultaneously published in the Express.

There was no way Michael Winner was going to tolerate being cast as the villain.  The bold print headline of his piece read “Calm down, I was only trying to help” in typical Michael Winner fashion.

What we see therefore is that the characters’ roles as victim and villain are never fixed or cemented.  Instead they are constantly shifting as we rush around the triangle trying to commandeer a different, more attractive role.

See also how the role of intervener or rescuer fits in.  Very often the victim will decide to rescue themselves and intervene to stop their victimisation. 

Very often they look elsewhere.  There is a very real danger that solicitors get cast into this role in the eyes of the client.  That brings its own problems though as there is a very thin line between rescuer and villain.  It is certainly easy to see how a villain will suddenly portray themselves as the victim at the hands of the rescuer.  At that moment the rescuer becomes the villain.

Clients can quickly turn on their own rescuers, again recasting them as villains.  Perhaps this can be seen in a dispute about rapidly escalating legal costs, or if the solicitor refuses to intervene in precisely the way that a client desires, refusing to play the hired gun, for example.

I recall a case where I had secured a settlement for a client whereby they received in excess of 90% of the matrimonial assets.  The client was angry with the result and what it left available for their partner.

Watch out then for the drama triangle and be aware of how the client is positioning themselves and others, including us, upon the triangle.  The easiest way to avoid getting caught up in the drama triangle is to discuss it openly, when appropriate, with our clients.  They will be fascinated to see it at work and very often moderate their attitudes and language.

The Narrative Language
The clarification above of the use of the word "storing" demonstrates a central element of narrative theory, namely the separation of the language we use, the meaning we perceive in such language and the reality of the experiences we are recounting.

When we retell an event we use words to communicate it. As we do so, those words recreate the experience to our listener. Not only that, but as we retell our experiences, we reaffirm our perceptions of what we have experienced to ourselves, as much as to our listeners.

So, our experience, of conflict or otherwise, drives our use of language in the retelling of the experience, but then the language we use creates additional meaning within the experience itself.

In Narrative Mediation, by Gerald Monk and John Winslade (Jossey Bass, 2001), there is a discussion of the “Landscape of action and the landscape of meaning” (pg 163).  In this model, things happen, in the landscape of action, from which we derive meaning.  As we retell what has happened we have the power to redefine the meaning of those events, for better or for worse.

Take for example a couple who separate after several years of marriage.  They separate quite amicably having grown apart.  One party goes to a solicitor to take advice on divorce proceedings.  He or she does not want to wait for two years separation and so drafts what they perceive to be inoffensive allegations of unreasonable behaviour.

The party receiving the draft petition now feels under attack.  They go out that evening and tell everyone how their ex-partner has instructed “An aggressive solicitor” and how they are now “being dragged through the mud.”

It is clear how this language, partly driven by the drama triangle perhaps, will recreate meaning for the respondent, and their audience.  It will reflect back onto the “Landscape of action” both retrospectively and in the response that he or she delivers and the way they will now act towards their ex-partner.

If it is possible to take that language in a different direction then the client’s understanding of what has happened will be different.  The meaning that they derive from the receipt of the unreasonable behaviour petition is changed and so are the subsequent actions.

District Judge Spencer wrote an article in The Gazette, 16th October 2008 which touches upon this role of language.  That article looks at the changing status of the residence order, and in particular the growing use of the “Shared Residence” order.  She writes “One is now frequently faced with parents who believe – erroneously –that if they are labelled as a “residence” parent they somehow have more legal standing, or to put it negatively, more legal power in the child’s life.”

The action of allocating the residence label to one parent or the other creates meaning. The label of “residence” becomes loaded with its own meanings – superiority, control, even tyranny.  District Judge Spencer goes on to look at a range of recent authorities where the language has been deliberately changed to shared residence orders to create a different meaning, moving away from sentiments of control and towards reasserting both parents’ role.

It is clearly to be hoped that a shift, such as this, in language would then alter the subsequent actions of the parents as they moved forward with the co-parenting of the children.

By understanding the narrative framework that clients operate in, we can ensure that we communicate in a way that is coherent and compatible with their narrative logic.  We can better understand what is important to them and why.

We can also start to challenge the vice like hold that narratives can exert over our clients by, for example, sharing the drama triangle with them, or looking at specific language that they use.

In doing so, we can reassure our clients that their perceptions and grievances are entirely reasonable.  At the same time we can start to consider alternative plots or narrative progressions with them.  The inevitable progression of litigation and post litigation resentment can be avoided and by carefully loosening the grip of a conflict led narrative we can perhaps explore a more constructive plot progression.

Part 1 of this article can be found via this link: Zeiderman, Conflict and Family Litigation

In next month’s concluding part we shall be looking at other recent cases to demonstrate how conflict seduces us into identifiable patterns of behaviour.  In particular we shall be revisiting the case of Mills v McCartney and demonstrating how Ms Mills’ conduct, the topic of much derision within the popular media, was neither surprising nor abnormal.