Katherine (KEM): Today I’m here with Debra Hamilton. Debra is the author of the newly published book, “How To Use Mediation to Resolve Conflicts Over Animals”. She is a pioneer in the world of animal mediation, which is not mediation between animals but mediation between people with disputes around animals and I am thrilled Debra to have you here today.

Debra (DH): Thank you Katherine, it’s really fun to be here. The book has a cute little title that starts it off as Nipped in the Bud, Not in the Butt. That way people can really understand that mediation can enable them to solve conflicts by having a dialogue. That you nip it in the bud instead of, as animals will do, nip you in the butt. And that’s what happens when conflicts arise.

KEM: So that’s really interesting. I think the field of disputes around animals is obviously much broader than divorce, which is my area of practice. But I just wanted to tell you a little story, but maybe I’ve shared this with you in the past, but when I told my husband that, my first husband, that I wanted a divorce the first thing he said to me was you’re taking the dog. And that was fine with me, but ironically and sadly years later he admitted to me the thing he felt the most guilty about was abandoning our golden retriever, Denver, and that he had pushed him off onto me in this sort of aggressive way which he regretted for years and years to come. I think that animals are family members, you know that. I think sometimes people, whether or not they have children or don’t have children, really focus a lot on the animals and they become very important and maybe you could talk a little about your experience with that.

DH: Well, it’s funny you mention that because today when I was thinking about this interview I said I hope I remember to talk about the people who may decide not to take the animal in divorce or actually hold the animal as ransom because they know how important it is to the other party.  At the end of the day they realize “wow I would have liked to keep the cat, the dog, the horse, the bird in my life. Attorneys don’t always get how important animals have become in our culture since the 60’s. From the 60s on they became our family members, our companions. They’re no longer just property.  As we know under the law, so if you go to court it doesn’t always work out in the best interest of either party or the animal. There was a recent case, Travis v. Murray, I wasn’t involved with, but it was a divorce and they fought hammer and tongue for this dog and the judge made a ground breaking decision.  In my opinion, a heart breaking decision because he gave them the opportunity to have a hearing and that’s not ever been done before. It’s been done for the Escalade and the Ferrari, but not for the dog. So he gave them this hearing, it was wonderful.  He said you have to decide who owns the dog outright and we, as attorneys, know with property there is sole ownership. You can’t really have joint custody of a dog; they’re not going to go there. It was great, however, this dog was now owned by one of the parties, not both of the parties. But what happens if one of the parties gets sick? Wouldn’t the dog prefer to be with the other party but for the fact you’re so angry. So in divorce, I get it, taking the dog because your husband has never taken care of it. Taking the dog because your wife really doesn’t like the dog. Whatever it is, recognize that the dog doesn’t dislike your spouse, you do. In our mediation and Collaborative group, we talk about that people get really angry with each other. To hold onto that and bring the dog in the argument really doesn’t serve the purpose you really want to serve;  the dog, the cat or the bird or the horse will really suffer. They don’t dislike the other spouse as much as you do.

KEM: I think animals are caught in a very weird place in the law, right? They are property, they’re chattel meaning inanimate objects as far as the law is concerned and yet of course they are not. Many of us who are animal lovers feel relationship with our animals very deeply and it’s a responsive relationship because they feel a relationship with us unlike our chairs or cars or our desks or whatever. The animal has a relationship with each of us as well and yet the law doesn’t treat them in that type of custody way, which is more the way obviously we think about children.  In some ways, there is more similarity between relationship between a person and a dog, but not so much animals that don’t live in your home. So an animal you share your home with it feels more like a relationship with another person than with an inanimate object and yet the law doesn’t treat animals in that way. I think what you’re talking about really in this case and in others like it is how can we treat animals in a way that is not as akin to another person but not as a chair or a car or a bank account?

DH: Well that’s why I created my practice because I am one of the only people in the United States.  There’s about five other of my colleagues who help people deal with this question involving the custody of an animal outside the divorce parameters. A lot of my attorney friends have said to me I wish I had a dollar for everyone who said this. I had wish I’d known you in the middle of a divorce agreement negotiation and we got down to the dog and everything had been settled but we got down to the dog and it almost blew up. What people don’t understand in our practice of divorce, especially in litigation, you have to ask upfront “do you have a pet?” You really need to now ask that almost at the same time that you ask “do you have children?” because the pet is usually the last best thing that you all did together. The kids cost you a lot of money, they sometimes aggravate you. The dog or the cat that lives with you only brings you joy, never asks you for much except maybe for food.  They’ve done studies if you pet a dog , live with a dog, pet a cat, your heart rate goes down your life seems more full. You relate to people and other animals better. You relate to your children better. So having an animal in your life is really impactful. So with divorce, you’re going through the worst time in your life.  As you said your ex-husband said I really regret not having Denver in my life at the end of the day. Well a lot of people do regret that, but at the time they know Katherine’s going to leave $20,000 on the table so that she can keep Denver and the attorneys are mystified that people will do that. There was one article I read in the Miami Harold when I was first starting this practice and the attorney was first quoted as saying my client left $20,000 on the table for a dog and it was old. So we, you and I own a dog, so it mystifies us that they did not get it. It had nothing to do with age; this was something that was going to anger her in this very emotional divorce process.  You and I have done collaborative and mediated divorces. I only do the piece with the animal but it really is something that has to be addressed, has to be talked about and it can’t be left until the end of the day.

KEM: I actually have two thoughts on my mind but let me start with this one and that is that it’s interesting that keeping money on the table over the dog that happens with kids too.

DH: Right.

KEM: That’s actually the worst piece of litigating and really the reason why I gave that model up because it didn’t meet my own core values of how people should be with each other and sometimes it’s necessary, it’s just not how I wanted to spend my life. Hence my mission to change how people divorce because I think there are better ways. One of the things I realized when I was litigating is that even with everybody wanting to do the best thing and keep the children out of it and really, genuinely, both parties, both attorneys, the court, it’s impossible not to bring them in in some way. Not necessarily into the courtroom but into the negotiation because of the emotional attachment and intensity that each parent has. At the same time, though, except in the worst of cases, most parents understand the importance of two parents in a child’s life. They may criticize the other parent and they may think they’re doing a bad job, they may think that they have a lot of ways in which they can offer helpful or not so helpful suggestions as to how the other person could do things differently, but they understand it took two of us to put this child here on the Earth regardless of how that child was brought into the family and we know that it’s important for that child to have both of us. The children have a voice, they literally can talk, right? And animals I think are much more prone as a culture to project onto them. I’m sure I’m guilty of this too it’s not a criticism but an observation. It makes it so much easier no, Fido or Rover or

DH: Fluffy

KEM: Fluffy, thank you, won’t miss Joe or Jill.  You know it’ll just be us because they like me better. I’m the one who always feeds, who always walks, who always grooms, or whatever it is.

DH: You’re absolutely right. So, I had a client who was sent to me by an attorney who wished me good luck because they were at loggerheads. One attorney had told his client that he had paid all the bills on the dogs so he deserved 50% of the time with the dog at the time of divorce. He couldn’t manage that because his ego got in the way because he should get 50%. When we sat down in mediation, he said, like you said, in child custody you can have the child, but in custody of a pet, you can’t. He actually recognized that the dog would be better off most of the time with his ex wife and he would get the dog every weekend and all vacations. He said, you know, I never would have gotten here without the ability to really examine and focus what it was I wanted. I think that’s what we bring to the table at Dialogue for Divorce. We get the parties to focus on what’s really important to them. I simply have the focus on what they feel is the best for the animal and after we get over the anger and talking of how you’ve never fed the dog, walked the dog, or cleaned up after the dog that’s fine. But when you think about the dog and its best interest, making sure both of these people who have been its parents for its life, they would prefer to be with one if the other couldn’t care for it and vice versa and you would know and feel better even if you know even if your spouse isn’t the best caregiver, the dog would be safe.

DH:  People really will go to the mat for their animals. I’m sure you can attest to this. They will absolutely, as you said, recognize what is best for the children because the children can verbalize and they know and they really want to be good parents, but the pet can’t verbalize and they really do want to keep that pet in their life or they know how much you want to keep that pet in your life so they hold it as a bargaining chip.  I’ve been able to in my practice both teach people how to address this conflict and my attorney friends how to ask about it and not necessarily set their clients up to want as my one attorney friend did, more than he/she can handle. You might not have the same living arrangement, you might not be able to have a pet, and you might not be able to afford to have a pet. You really have to best interest of the pet as well as you

KEM: and your children

DH: and your children.

KEM: I’m thinking of a client of mine who post divorce is living separately from her now ex husband and sharing custody of their children and the dog. This was a women who spent a lot of time at home alone, a stay at home mom when she began a home based business. She was home with the dog a lot and the dog was supposed to go back and forth with the children and I remember her saying you know I really miss the dog when she’s not here. It’s not that I don’t miss the children but this sort of companionship of having the dog with me and her relationship with her dog really deepened on the other side of divorce and this was a dog they had gotten for their kids and the typical people kind of thing. I really think that going through divorce or any other obviously traumatic, difficult time in life, your pet can become even that much more important.  So then the focus of your comfort and the relationship with your pet is being wrested away from you in a difficult time in your life. Sometimes this sort of symbolic thing of not only are you leaving me, not only is my  life as I know it over, but you’re taking away from me my biggest source of solace and comfort.

DH: Right, the one thing when I come home from work that never asks me for anything,, just comes and greets me and says hello. Especially in families that have chosen to simply have animals and not have children when those families break up. I had a mediation of a conflict between people over an animal and they weren’t married but this animal was their child. They had been together for a number of years and when they broke up they used to steal the dog from each other because they just wouldn’t be able to give it up. This was, as you said, their solace, their comfort the result of the relationship breakup. And through mediation, which they were never able to do with attorneys, they were able to have that conversation, talk to each other about why it was so important that this animal stay in their life. Recognizing that to the other party, it was just as important but they were able to listen.  You and I both know that enabling parties in mediation or collaborative to actually listen to other party through the voice of the collaborative attorney or mediator helps them understand that the best interests of the children or the animal.  You can actually come to a solution you never even thought of before. I know you’ve probably spoken about it a number of times on this radio program how solutions have come from the parties themselves.   They never would have thought they could have come to that simply because we enabled them to sit down, take time, focus, and think about the thing they’re arguing about which is the animal, the children and in my case, always the animal and knowing what to do for the best interest. After they get, dumping their bucket as I say of how much they dislike you, and they can come back around, “I really dislike you, I’m not going to like you anymore but Fluffy doesn’t dislike you as much as I do”.  Frankly there are cottage industries springing up over the big cities that are providing that transportation – doggy day cares, doggie taxis that actually provide transportation between divorced  couples so they can actually share the dog and never have to see each other.

KEM: Many times people come into mediation around conflicts over animals or divorces or anything and they have the same conflict conversation again and again and again where one person says one thing and the other person says another thing.  They’ve had the same exact conversation word for word, minute for minute and they both come in so frustrated and they’re so desperate to have someone hear where they’re coming from and affirm that they’re not wrong.  I think that what you’re saying about the conversations you have with divorcing people around their animals or other conflicts around animals is that in the mediation process you’re able to expand that conversation.  Could you tell us a bit more about how that works or just some examples about how you have seen that happen?

DH:  Well, in the discussion that we always start with, as you’ve said, they’ve never taken care of the dog, they’ve never fed the dog, they’ve never even spent time with the dog other than the dog was on the couch maybe during TV. But then you listen to the other side which says well, she always fed the dog, she always walked the dog and I really I work too much, but I always took the dog out on Saturday mornings. And then, the memory spurred oh yeah you did take the dog out on Saturday mornings, I forgot that. I remember this school teacher. He only had a set amount of time he could spend with the dog and that was totally forgotten in the anger, as it sometimes is and when you sit down and have a conversation with the parties they start to remember things and they talk about them.  Since they’re talking to the mediator first and the other party hears it through the reflection of the mediator of understanding and looping and making sure we hear what it is that one party is saying, we both practice understanding based mediation and it’s something that you try to understand exactly where the person is coming from and they give you that information.  It spurs the memory of the other person or it gives credit to the party who is speaking because you are understanding them.  They tend to listen more deeply to how the mediator reflects back what’s being said and they hear it in their head in a different voice.  They hear it for the first time sometimes even though it might have been said a hundred million times but I just wasn’t listening to you because as in conflict I’m always thinking about how do I answer you and I’m not really hearing what you’re saying.  So especially with the animals, I can enable people to stop and listen to the other party and figure a way to find a solution.

KEM: Each person’s view of the actual facts is expanded to include a little bit of the facts as the other person sees them.  We see that in conflict all the time.  People come to my office and disagree on the color of the sofa in their living room and it’s not like one person is wrong and one person is right or whether or not if I see the sofa oh yeah it is green not blue like what does that have to do with anything? It’s really about being able to have a shared understanding of the facts enough so that they the dispute that they’re having they can make enough room for the other person to include them in the solution.

DH: For me, it makes such a difference when we can sit down and have a conversation, recognize how much an animal is important to both parties even though each party hasn’t given the other one credence. It’s overly important to you or I’m going to punish you for it, because you gave it too much attention and not enough attention to me.  And that’s why we’re getting divorced or you’ve never given it attention, why do you want it now?  You’re only doing it to hurt me. Then as you said with your ex-husband, they get to think now they didn’t have that opportunity then to reflect maybe what life would look like without Denver and maybe had he reflected on that, he would have said maybe would like to have him once a month or I would like to have him once a year when you’re on vacation.  And that would established that connectivity that Denver would have appreciated because I’m sure he didn’t dislike your ex-husband and so it was him. So who knows but it could have been something that god forbid anything ever happened to you there was always somewhere else for the animal to go.  That is always my thrust when I’m talking to a divorcing couple. I say “I get it they should stay with Katherine, I get that but if something happens to Katherine, wouldn’t you like, Dave, to get it” because that’s the person the dog knows second best. And you think about that and I don’t have a crystal ball and maybe that is a good thing.

KEM: I’m thinking that when we talk about custody of children, the children have a voice in it and we talked about that a little bit earlier.  There are child specialists and child forensic psychologists and there are whole kind of ways in which the children can use their voice and the gift of language and communicate their wishes to other human beings.  There are animal psychics and animal communicators.  It’s hard not to kind of roll your eyes a little bit when you hear that or we do it by the telephone. Is there any way that you have come across in an intriguing or interesting way of getting actual feedback from the animal other than the folks standing on two sides of the park and each calling for Fido?

DH: That sort of is prone to danger because of the fact that Fido was always going to go to the person who it’s most attached to. I have 5 dogs and each and everyone of them would run towards me and nobody would run towards my husband because he doesn’t have a lot of impact with them.  But he loves them and when I’m not there they’re not running to anybody else but my husband. It’s a little manufactured if you try to have someone decide, oh so they like Katherine better because they all ran to Katherine and so we’ll give them to Katherine. When in fact, the dogs would pick Debra if no one else was in the room because they are both equal. What I have found is that most of the dogs if you leave them in the room, and you observe the interaction with the dog, the dog will interact almost identically with both parties unless of course someone is abusive.  Then you have to think about that and if there is a claim of abuse then you have to think about that. However, most of the time it’s simply that you don’t want to have to deal with the other spouse.  Which is why I brought up the cottage industries supporting people to get the dogs back and forth, because you really want to support the animal’s ability to live with everyone because they don’t hold a grudge, they aren’t angry. Especially where kids are involved to enable the dog to go back and forth. Cats don’t really survive as well going back and forth from their home to some other home. It can be done especially if some other people are diligent, but it is a little more difficult than dogs. Dogs are much more adaptive.  But you really want to make sure when you’re having that conversation about who loves the dog more or who the dog loves more, you’re very careful not to skew it because that will almost always be the person who takes care of the pet. That does not mean that the only person the pet would go to in a pinch. I don’t disagree that people can talk to your dog from the other side.  There are a lot of people who have great websites that help you have a dialogue with your dog both when it’s alive and when its dead and a lot of people put a lot of credence in that. I tend to really like to have a conversation with the divorcing people and keep them in the present and focus on what they want to do in the best interests. I always cringe when people want to go to court to fight over their dog. The courts hands are really tied because it’s like a chair.

KEM: The courtroom in my opinion is very bad for families. I discovered that in 10 years of litigation. Not just matrimonial litigation but child welfare litigation and I think it’s possibly even a worst place for animals

DH: Oh it really is because you just don’t ever get the ability to speak about the emotion because it’s only the facts man.

KEM: Before we end, I want to give people a chance to contact you so what is your contact information.

DH: well, you can reach me at www.hamiltonlawandmediation.com or you can write me at [email protected] you can follow me on twitter at hlawmediation and you can linkedin with me. You can call me at 914-273-1085. I look forward to speaking with anyone who is in conflict over animal whether in divorce or not. Neighbors with barking dogs, call me too.