Tuesday, September 22, 2009
Friday, April 24, 2009
Divorce without war
Divorce is pretty common these days. Each year half as many people divorce as marry. While that creates a lot of marriages that last, it also means that many fail. Attorneys whose clients are contemplating marriage school them in divorce planning, just as attorneys whose clients are starting a business get assistance with bankruptcy planning as part of the package.
The vast majority of divorces in California, something like 85 percent, are untouched by attorneys. Not surprisingly, people who do not have a lot of assets look to other alternatives. One of the services I provide at the Center for Peacemaking and Conflict Studies at Fresno Pacific University is divorce mediation, and most of my clients are hoping to save money by being cooperative. It usually works, and they also learn through the process how to cooperatively parent their children and deal with future financial issues. Having handled over 1,000 divorces as an attorney and mediator, I can help people avoid known pitfalls.
Divorces involving attorneys usually have two features in common: lots of assets and lots of conflict. Mediation is also just right for some of these folks, but many of them are so seriously conflicted that they feel the need for an advocate who will protect them. Some are not so conflicted, but one partner has a lot more information than the other, and the playing field is not level. Attorneys can play an important role in both types of cases, with or without mediation.
As hard as it may be to believe, attorneys do not enjoy working with highly conflicted, emotionally enmeshed divorce cases. Clients in these cases are often out to cause pain to the other party at any cost. In my own practice I decided my life would not include hurting people for money, and I moved into mediation and dropped litigation. Other lawyers are similarly motivated.
The result is a new field for attorneys: collaborative law. In collaborative law the lawyers and clients work together to find the best solution to the disputants' problems. Family law is a large area for collaborative lawyers, but it can be applied to any area of conflict. Rather than each lawyer/client team sneaking up on the other side, all business is done in a four-way conference where both clients and both attorneys are present. While helping their own client understand the situation, both attorneys are committed to crafting the best overall response to the problem. Win-lose is not an option. In each situation the result must be a win-win for the parties, and both attorneys are committed to it.
If a client decides that cooperation isn't working and that litigation is required, both collaborative attorneys are dismissed, along with any joint experts (accountants, appraisers, parenting coaches), and the clients must begin from scratch. This is part of the collaborative agreement, and is a powerful disincentive to refusing to cooperate.
Collaborative law can be a great money-saver, but that isn't the main motivation. The main motivation is going through the divorce process in a way that leaves both parties satisfied with the outcome, and able to collaborate in their relationships with the children.
There are many collaborative law groups around the country. In central California, Central Valley Collaborative Law Affiliates (http://collaborativelawyers.org) provides family law support and is expanding beyond that. The International Academy of Collaborative Practice (http://collaborativepractice.com/) brings all the collaborative law groups together. There is a way to handle divorce, or other legal issues, without war. As a mediator and member of Central Valley Collaborative Law Affiliates, I support these groups, and wish them well in the cases appropriate for their services.
(This article first appeared in Fresno Pacific University's "Scholars Speak" at http://www.fresno.edu/scholars_speak/duane_ruth_heffelbower/02_12_2007.asp )
The vast majority of divorces in California, something like 85 percent, are untouched by attorneys. Not surprisingly, people who do not have a lot of assets look to other alternatives. One of the services I provide at the Center for Peacemaking and Conflict Studies at Fresno Pacific University is divorce mediation, and most of my clients are hoping to save money by being cooperative. It usually works, and they also learn through the process how to cooperatively parent their children and deal with future financial issues. Having handled over 1,000 divorces as an attorney and mediator, I can help people avoid known pitfalls.
Divorces involving attorneys usually have two features in common: lots of assets and lots of conflict. Mediation is also just right for some of these folks, but many of them are so seriously conflicted that they feel the need for an advocate who will protect them. Some are not so conflicted, but one partner has a lot more information than the other, and the playing field is not level. Attorneys can play an important role in both types of cases, with or without mediation.
As hard as it may be to believe, attorneys do not enjoy working with highly conflicted, emotionally enmeshed divorce cases. Clients in these cases are often out to cause pain to the other party at any cost. In my own practice I decided my life would not include hurting people for money, and I moved into mediation and dropped litigation. Other lawyers are similarly motivated.
The result is a new field for attorneys: collaborative law. In collaborative law the lawyers and clients work together to find the best solution to the disputants' problems. Family law is a large area for collaborative lawyers, but it can be applied to any area of conflict. Rather than each lawyer/client team sneaking up on the other side, all business is done in a four-way conference where both clients and both attorneys are present. While helping their own client understand the situation, both attorneys are committed to crafting the best overall response to the problem. Win-lose is not an option. In each situation the result must be a win-win for the parties, and both attorneys are committed to it.
If a client decides that cooperation isn't working and that litigation is required, both collaborative attorneys are dismissed, along with any joint experts (accountants, appraisers, parenting coaches), and the clients must begin from scratch. This is part of the collaborative agreement, and is a powerful disincentive to refusing to cooperate.
Collaborative law can be a great money-saver, but that isn't the main motivation. The main motivation is going through the divorce process in a way that leaves both parties satisfied with the outcome, and able to collaborate in their relationships with the children.
There are many collaborative law groups around the country. In central California, Central Valley Collaborative Law Affiliates (http://collaborativelawyers.org) provides family law support and is expanding beyond that. The International Academy of Collaborative Practice (http://collaborativepractice.com/) brings all the collaborative law groups together. There is a way to handle divorce, or other legal issues, without war. As a mediator and member of Central Valley Collaborative Law Affiliates, I support these groups, and wish them well in the cases appropriate for their services.
(This article first appeared in Fresno Pacific University's "Scholars Speak" at http://www.fresno.edu/scholars_speak/duane_ruth_heffelbower/02_12_2007.asp )
Saturday, March 28, 2009
Listening to art
Last night Chris Janzen the tactile artist/musician and Jesse Nathan the poet performed their piece “Dinner” at Mennonite Community Church. The venue was suitable for family and friends and it was a good couple of hours.
The piece is a mix of Chris’s experimental music made with various synthesizers, a guitar and string base, Chris’s collages, and Jesse’s poetry. All of it comes at you at once. I liked the overall effect and everyone in the audience, including our not quite eleven year-old granddaughter, stayed engaged. But how to describe a gallery display/poetry reading/concert?
Neuroscientists have studied the ability to multi-task, and it appears that there is no such thing as focusing on more than one thing at a time. Those who multi-task well are those adept at switching their attention among several things in rapid succession. The receptionist with a typing project would be an example of someone quickly shifting from typing to answering the phone to greeting a guest. A teenager texting while listening to music, watching television and doing homework could be another example.
“Dinner” demanded multi-tasking by the audience unusual for a performance. An orchestra asks the listener to hear the overall sonic experience while focusing on a theme in different instrumental sections sequentially. A rock concert creates a soundscape with moving focus and visual elements that don’t require any focus. An art display lets you look at a work in totality and then to move your focus around the piece. Looking at one of Chris’s collages on the web is like that. You can see the whole piece or magnify a portion.
At “Dinner” the visual focus moves from the projected collage image to the performers’ actions while the poetry, which requires continual focus, happens with simultaneous sounds that are difficult to predict and constantly grab away the listener’s focus. Paying attention to my body I became aware that the sounds created a good deal of anxiety which resulted in hearing the poetry and seeing the collages as more menacing than when I view the collages at leisure, or read the poems. Listening to the sounds in the safety of my bedroom does not generate the same anxiety as watching Chris produce them. The somewhat frenzied and unpredictable behavior that goes into producing the sounds creates an edge not there when they are simply heard.
My guess is that reading the poetry while the recorded sounds were played would be a completely different experience, and that the brain would simply sideline the sounds so that it could focus on the words. If Chris was making the sounds live while a recorded poet was played, I doubt that the poetry would make it through to the listener.
All this to say that the work was a worthwhile experience that has kept me thinking about it since. You can view, listen to and read the various bits at http://chrisjanzen.startlogic.com/.
The piece is a mix of Chris’s experimental music made with various synthesizers, a guitar and string base, Chris’s collages, and Jesse’s poetry. All of it comes at you at once. I liked the overall effect and everyone in the audience, including our not quite eleven year-old granddaughter, stayed engaged. But how to describe a gallery display/poetry reading/concert?
Neuroscientists have studied the ability to multi-task, and it appears that there is no such thing as focusing on more than one thing at a time. Those who multi-task well are those adept at switching their attention among several things in rapid succession. The receptionist with a typing project would be an example of someone quickly shifting from typing to answering the phone to greeting a guest. A teenager texting while listening to music, watching television and doing homework could be another example.
“Dinner” demanded multi-tasking by the audience unusual for a performance. An orchestra asks the listener to hear the overall sonic experience while focusing on a theme in different instrumental sections sequentially. A rock concert creates a soundscape with moving focus and visual elements that don’t require any focus. An art display lets you look at a work in totality and then to move your focus around the piece. Looking at one of Chris’s collages on the web is like that. You can see the whole piece or magnify a portion.
At “Dinner” the visual focus moves from the projected collage image to the performers’ actions while the poetry, which requires continual focus, happens with simultaneous sounds that are difficult to predict and constantly grab away the listener’s focus. Paying attention to my body I became aware that the sounds created a good deal of anxiety which resulted in hearing the poetry and seeing the collages as more menacing than when I view the collages at leisure, or read the poems. Listening to the sounds in the safety of my bedroom does not generate the same anxiety as watching Chris produce them. The somewhat frenzied and unpredictable behavior that goes into producing the sounds creates an edge not there when they are simply heard.
My guess is that reading the poetry while the recorded sounds were played would be a completely different experience, and that the brain would simply sideline the sounds so that it could focus on the words. If Chris was making the sounds live while a recorded poet was played, I doubt that the poetry would make it through to the listener.
All this to say that the work was a worthwhile experience that has kept me thinking about it since. You can view, listen to and read the various bits at http://chrisjanzen.startlogic.com/.
Thursday, February 26, 2009
Punishment without redemption
Teaching is not just a two way street. Not only do students learn from the professor and the professor from the students, the professor also learns by hearing him or herself say things out loud. That is particularly true for extraverts who process information out in the open where everyone gets to play.
My class was working on the concept of restorative justice and how it is different from retributive justice. Retributive justice assigns guilt and punishes. Restorative justice identifies needs and responsibilities, and then provides an opportunity for those responsible to meet the needs.
The students were looking at the specific question of how an offender finds redemption, and which style of justice seeking would work best for that purpose. It was obvious that offenders who take responsibility for the harm they have caused and do what they can to meet the needs that result are more likely to find redemption.
I heard myself say “punishment without redemption is a waste of time.” As I have thought more about it that saying continues to sound true. What is the purpose of punishment if not to let a person pay their debt to society and be let back in? That is not how it works. These days a person who is punished carries that burden of guilt for the rest of their lives. A fortunate few are able to reintegrate with society and live productive lives. Our system creates a permanent underclass of the formerly incarcerated.
Punishment without redemption is not only a waste of time, but of valuable human resources which are permanently set aside. Since 1 out of every 100 adult Americans is currently incarcerated, and at present rates, according to the US Department of Justice, one in fifteen Americans will serve time in prison, this wasteful way of doing things is unsupportable.
We need to re-connect punishment and redemption. Without including a path to redemption, punishment is a waste.
_______________
Duane Ruth-Heffelbower teaches in the criminology and restorative justice studies program at Fresno Pacific University.
My class was working on the concept of restorative justice and how it is different from retributive justice. Retributive justice assigns guilt and punishes. Restorative justice identifies needs and responsibilities, and then provides an opportunity for those responsible to meet the needs.
The students were looking at the specific question of how an offender finds redemption, and which style of justice seeking would work best for that purpose. It was obvious that offenders who take responsibility for the harm they have caused and do what they can to meet the needs that result are more likely to find redemption.
I heard myself say “punishment without redemption is a waste of time.” As I have thought more about it that saying continues to sound true. What is the purpose of punishment if not to let a person pay their debt to society and be let back in? That is not how it works. These days a person who is punished carries that burden of guilt for the rest of their lives. A fortunate few are able to reintegrate with society and live productive lives. Our system creates a permanent underclass of the formerly incarcerated.
Punishment without redemption is not only a waste of time, but of valuable human resources which are permanently set aside. Since 1 out of every 100 adult Americans is currently incarcerated, and at present rates, according to the US Department of Justice, one in fifteen Americans will serve time in prison, this wasteful way of doing things is unsupportable.
We need to re-connect punishment and redemption. Without including a path to redemption, punishment is a waste.
_______________
Duane Ruth-Heffelbower teaches in the criminology and restorative justice studies program at Fresno Pacific University.
Sunday, February 15, 2009
I thought about it
Jimmy Carter confessed to an interviewer that he had committed adultery in his heart. Fortunately for Pres. Carter that is not a crime. Be careful what you think in this post 9/11 world. Sometimes the difference between thinking and doing is less than you expect. December 22, 2008 five Muslim men were convicted of conspiracy to kill American soldiers at Fort Dix, an army base near Philadelphia. They could be sentenced to life in prison.
The evidence in the case consisted mostly of recorded conversations and testimony by two informants who were paid to infiltrate this terrorist cell and gather evidence. The main informant was a legal immigrant who had served time for bank fraud, been arrested for fighting with a neighbor and had filed bankruptcy.
A conviction for conspiracy requires more than just talk, of course. You have to do something in furtherance of the plan. Two actions were alleged in this case. The men purchased assault weapons through the informants, who got them from the FBI, and practiced shooting them in the Pocono Mountains. The other action was scouting nearby military bases. Fort Dix was the preferred target since the father of one of the conspirators owned a business that delivered pizza to the base.
Talking about an attack, acquiring weapons and checking out targets sounds pretty dangerous. That is what you would do if you were going on a suicide mission to kill soldiers on their own base. The jury deliberated 38 hours and rejected counts of attempted murder. It sounds like the FBI did a good job following up on the lead they received from a Circuit City clerk who called after one of the men had him transfer video of a shooting session by men shouting jihadist slogans to DVD. Heads-up police work saved the day.
The problem here is what the evidence did not show. The prosecution conceded that the men had no plan for carrying out the attack. They were unhappy about the actions of the US government, talked about it with their friends, and shot assault rifles at a range in the woods. A lot of patriotic Americans do the same. The second amendment right to bear arms is partly in furtherance of the claim of the Declaration of Independence that “. . .whenever any Form of Government becomes destructive of these ends [life, liberty and the pursuit of happiness], it is the Right of the People to alter or to abolish it, and to institute new Government. . . .”
The other big thing the evidence did not show was that these men were willing to die in the process of killing soldiers. The defendants included a cab driver, a convenience store clerk and three brothers who owned a roofing business. One thing we have learned about suicide jihadists is that they don’t go to work every day while they are planning their attack. The norm, to the extent one can determine such a thing, seems to be that suicide jihadists come from financially better off families and are recruited, trained and equipped by organizations. In the Fort Dix case there was no evidence of connection to any organization. The only help they had was the two informants. There was no one to celebrate their martyrdom.
The question here is whether or not we want our government to protect us by recruiting, equipping and training jihadists using informants who have nothing to lose and much to gain by producing defendants. It would have been terrible if these men had succeeded in entering Fort Dix and committing mass murder. Maybe it is worth wrongly imprisoning some big-mouthed malcontents to avoid atrocities like that.
The FBI ended the investigation and arrested the defendants after the purchase of automatic weapons. There was no plan for the attack yet, but one can assume that the FBI did not want to risk having weapons it provided used in any criminal activity, causing them to wrap the case up.
When I teach conspiracy law my students are always amazed at how little it takes to make a case. Talk and an action in support of the talk will do it. Cases usually come down to who the jury believes, not whether the necessary legal elements are present.
Had any murderous thoughts lately? Be careful who you share them with, particularly if your friend offers to get you a deal on the weapons.
_________________________________________________________
This post has been published by Fresno Pacific University as a Scholars Speak article at http://www.fresno.edu/scholars_speak/duane_ruth_heffelbower/01_07_09.asp
The evidence in the case consisted mostly of recorded conversations and testimony by two informants who were paid to infiltrate this terrorist cell and gather evidence. The main informant was a legal immigrant who had served time for bank fraud, been arrested for fighting with a neighbor and had filed bankruptcy.
A conviction for conspiracy requires more than just talk, of course. You have to do something in furtherance of the plan. Two actions were alleged in this case. The men purchased assault weapons through the informants, who got them from the FBI, and practiced shooting them in the Pocono Mountains. The other action was scouting nearby military bases. Fort Dix was the preferred target since the father of one of the conspirators owned a business that delivered pizza to the base.
Talking about an attack, acquiring weapons and checking out targets sounds pretty dangerous. That is what you would do if you were going on a suicide mission to kill soldiers on their own base. The jury deliberated 38 hours and rejected counts of attempted murder. It sounds like the FBI did a good job following up on the lead they received from a Circuit City clerk who called after one of the men had him transfer video of a shooting session by men shouting jihadist slogans to DVD. Heads-up police work saved the day.
The problem here is what the evidence did not show. The prosecution conceded that the men had no plan for carrying out the attack. They were unhappy about the actions of the US government, talked about it with their friends, and shot assault rifles at a range in the woods. A lot of patriotic Americans do the same. The second amendment right to bear arms is partly in furtherance of the claim of the Declaration of Independence that “. . .whenever any Form of Government becomes destructive of these ends [life, liberty and the pursuit of happiness], it is the Right of the People to alter or to abolish it, and to institute new Government. . . .”
The other big thing the evidence did not show was that these men were willing to die in the process of killing soldiers. The defendants included a cab driver, a convenience store clerk and three brothers who owned a roofing business. One thing we have learned about suicide jihadists is that they don’t go to work every day while they are planning their attack. The norm, to the extent one can determine such a thing, seems to be that suicide jihadists come from financially better off families and are recruited, trained and equipped by organizations. In the Fort Dix case there was no evidence of connection to any organization. The only help they had was the two informants. There was no one to celebrate their martyrdom.
The question here is whether or not we want our government to protect us by recruiting, equipping and training jihadists using informants who have nothing to lose and much to gain by producing defendants. It would have been terrible if these men had succeeded in entering Fort Dix and committing mass murder. Maybe it is worth wrongly imprisoning some big-mouthed malcontents to avoid atrocities like that.
The FBI ended the investigation and arrested the defendants after the purchase of automatic weapons. There was no plan for the attack yet, but one can assume that the FBI did not want to risk having weapons it provided used in any criminal activity, causing them to wrap the case up.
When I teach conspiracy law my students are always amazed at how little it takes to make a case. Talk and an action in support of the talk will do it. Cases usually come down to who the jury believes, not whether the necessary legal elements are present.
Had any murderous thoughts lately? Be careful who you share them with, particularly if your friend offers to get you a deal on the weapons.
_________________________________________________________
This post has been published by Fresno Pacific University as a Scholars Speak article at http://www.fresno.edu/scholars_speak/duane_ruth_heffelbower/01_07_09.asp
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