By Joseph Caulfield

Rage – Goddess, sing the rage of Peleus’ son Achilles,

murderous, doomed, that cost the Achaeans countless losses,

hurling down to the House of Death so many sturdy souls,

great fighters’ souls, but made their bodies carrion,

feasts for the dogs and birds and the will of Zeus was moving toward its end. Begin, Muse, when the two first broke and clashed,Agamemnon lord of men and brilliant Achilles….1

The Uniqueness of Family Law Litigation

Family law litigation leads to more burnout of the judges,

marital masters, lawyers, guardians ad litem, and mental health

workers than perhaps any other area of our practice. I t overloads

us, places an inordinate amount of pressure on us, frustrates us,

and has the capacity to taint our view of the world. U nwilling to

back down from the challenges, we are compelled to take on every

stressor that comes our way.2

Most judges who are murdered by dissatisfied parties are killed

by the irate domestic litigants, not by the criminal defendants.

The reason is simple: more emotional issues are involved than in

any other litigation.3 With such statistics, one wonders why N ew

Hampshire spends the manpower and time to so thoroughly search

the lawyers as they enter the courthouse, other than through some

strained sense of egalitarianism. Surely, we are a statistically innocuous

group.

In most areas of the law the roles of the parties are clear and

the opportunity for litigation fairly limited, as, for example, motor

vehicle personal injury law. S eldom have the two drivers met before

and, when the case is either tried or settled, seldom will they meet

again. They never loved each other, so if they hate each other now, as opposed to merely consider each other damned fools, the hate

is not a deep hate and abates readily when the case is concluded.

In criminal law, again the issues are clear-cut. I t is the government

against the individual. A criminal defendant may develop

hatred of a particular prosecutor and vice versa, but seldom does

a criminal defendant “hate” the government and, of course, the

government has no feelings, being too often the implacable W heel

of Karma. N either of the parties ever loved each other. A gain, the

encounter is limited and, although with certain defendants there

may be frequent additional encounters, the issues defining each

encounter are very different.

Family law litigation and probate litigation offer unique challenges.

Whenever a client comes to a lawyer with a horror story of

litigation that never ended, it is likely to involve a contested divorce

or a contested estate. Family law litigation and probate litigation

share the same weighty psychological issues, and these issues

drive the litigation, not the legal issues. I n a contested estate, the

litigants, in the guise of disputing the division of estate assets, are

often struggling over issues of “mother loved you best,” “I loved

mother best,” and, “if only you had taken better care of mother,

she’d be here today.” S ince the parties are not really struggling

about money, they seldom perform cost-benefit analyses, and

legal fees often escalate uncontrollably, producing little tangible

value. N ote, I wrote that the fees often escalate uncontrollably,

not that the parties pay these fees. T he parties have a lifetime of

grievances against each other and can take years to work them

out in the court system, if ever.

In family law litigation, the parties, again, have a long history

together, though, perhaps, not as long as in probate litigation.

The parties once loved each other romantically and lived together.

Now, often as conflicted co-parents, they hate each other. T hey

will sincerely confess to the court that the spouse, whom they once

held above all others, is not fit to have one unsupervised moment

of contact with their child, lest the child suffers some heinous fate.

Again, since the litigation is seldom about finances, despite what

the parties contend, legal fees are really no object, and the case cango on, and on, and on. Worse even than probate litigation, is family

law litigation, because most estates close in a couple of years no

matter how litigious the parties are. A divorce which occurs early

in the children’s life can go on through the children’s majority.

A while back, I was involved in a sad case involving two parents

who acrimoniously litigated the issue of custody of a special-needs

child through most of the child’s minority. U ndaunted by the

child attaining his majority, they continued litigation through

the vehicle of a contested guardianship.

Further, not content with trying to destroy the spouse, such

litigants, more frequently of late, then try to destroy the professionals

involved in the case, filing specious complaints with the

Judicial Conduct Committee, the Professional Conduct Committee

and the Guardian ad L item Board.

And, consider how children fare in these litigation disasters.

Although a parent within a violent family may think they are

protecting their children from this violence, 80 percent to 90

percent of these children report the opposite. I n fact, one out of

four times that a father murders a mother, their child is a witness.4

Even the most carefully crafted and intricately structured parenting

plan is not foolproof. As the saying goes, nothing is foolproof

because fools are so ingenious. Any family law practitioner with

some wake behind his or her keel will relate the often recurring,

malicious tricks. M other sends son to father’s barbecue with the

grandparents with son dressed in rags. Father returns daughter to

mother from the skiing trip keeping all the expensive new clothing.

Mother complains that whatever daughter eats at father’s makes

her sick/brings out her allergies/keeps her awake at night/makes

her sleepy during the day. Father complains that the video that

daughter watched at mother’s house was too old/too young/too

frightening/too boring. O f course, all too soon the children will

be telling the parents when and for how long they’ll be in the

company of each parent, on any given day, leading a more astute

parent to consider that the $50,000 she paid her attorney to obtain

this parenting schedule and no other, could have been better spent

on the child’s post-secondary education at best, or on visiting the

Isle of Capri, at worst.

However, to dismiss these family law disasters by assuming that

one or both of the parties have become crazed or angered beyond

reason misses an opportunity to comprehend how our understanding

of anger has changed, and what can be done to help.

Homer’s Iliad

The primary myth of our western culture, Homer’s Iliad,

was a family law disaster of nine years’ duration. Although long

before the French troubadours invented romantic love, consider

what Homer recounted for us. Helen, the wife of King Menelaus

of Sparta, eloped with Paris, the son of King Priam of Troy, about

1260 B CE. T o avenge this insult and to bring Helen home, the

Greeks launched an expeditionary fleet of 1,000 ships against

Troy. Agamemnon, the King of Mycenae, and Menelaus’ brotherin-law, was elected commander in chief.

Unfortunately, he was greedy, ambitious and arrogantly stupid. O ne of the Greeks who

accompanied Agamemnon was Achilles, who, in the judgment of

his peers, was more qualified than Agamemnon to command the

fleet. T he struggle between Agamemnon and Achilles is brought

to a climax nine years into the siege when Agamemnon publicly

humiliates Achilles by taking from him the beautiful Briseis, a

war prize with whom Achilles fell very much in love. T hereupon,

Achilles refuses to fight any longer for the Greeks and sulks in his

tent. Eventually Achilles learns compassion and experiences moral

growth. T his is brought about through the intersession of the Gods,

the death of Achilles’ male lover, Patroclus, at the hands of Hector,

Achilles’ slaying of Hector and desecration of his corpse, and

his personal encounter with King Priam. T hen, in fulfillment of

prophecy, Achilles is struck down by the cowardly arrow of P aris.5

This would be a “Greek tragedy” (tragoidia), but for the fact that

Greek tragedy, just as romantic love, had not yet been invented

(Subsequently developed in the theaters of Athens by Aeschylus,

Sophocles, and Euripides in the fifth century B CE.)

The I liad does not begin with an infringement of a moral code:

it begins with passions that are far more profound than moral rules

and are beyond the scope of reason, with forces operating in human

life which seem beyond human control. M orals have nothing to

do with it. Rage, “ménis,” is the ultimate sanction against taboo

behavior. Only Gods and heroes have “ménis.” A powerful and effective sanction, despite its outbreak in disorder, “ménis” keeps

the world in order and the cosmic categories intact.6

That it is Athena who initially advises Achilles to control his

rage is very telling. Although associated with war and battle,

the goddess Athena is described by the god Aries in the Iliad as

“aphrón,” crazed or frantic. However, it was more typical of

Athena to act with restraint even in battle, and she was more likely

to reveal herself in situations that demanded clear thinking, the

calming of emotions, and the restraint of violence. U nlike A ries,

she does not fight and seek out battle for the thrill of it, nor does

she express herself most fully in the bloodlust and tumult of battle

and killing, as does Aries.

For her, warfare is primarily political, tactical and expedient

– one way among others to obtain some goal or to protect some

cherished value. S he is more interested in martial arts techniques,

the skillful use of weapons, and the strategy of war, or the use of

cunning and reason, than she is in the din and frenzy of violent

struggle. Her presence in battle does not incite rage and fury;

her presence incites courage and daring, tempered with control

of the passions that can make a person reckless and vulnerable.

Therefore, it is only fitting that when Achilles first feels rage rising

within himself and reaches for his sword, intent upon slaying

Agamemnon, it is Athena who appears to him, grabbing him by

his hair. Achilles turns towards her and stares into her terrible

shining eyes. S he is not there to incite him to violence, however.

On the contrary, she has appeared to stay his hand. S he counsels

him to return Agamemnon’s insults with words of his own, but

to resist his urge to violence. I n return for his restraint, A thena

promises him greater rewards in the future.

In all her tales, Athena demonstrates a tendency to employ

wisdom, knowledge and cunning in leading events in the direction

she favors. Her way of achieving success is to employ reason,

intelligence and skill. O ne of Athena’s most common descriptions

is “bright eyed” (glaukopis) relating to her intelligence. T hat

she is associated with the owl, whose large luminous eyes are so

striking, also might be understood as suggesting her intelligent

nature. A consistent theme in the mythology and cult of Athena is

her identification with the city state of A thens where the tale is told

that, in the trial of Orestes for the murder of his mother Clytemnestra,

Athena established a court of justice in which democratic

voting by leading citizens decided the fate of the accused, thereby

doing away with the archaic and disruptive law of blood revenge.

However, it must never be forgotten that Athena wields two attributes

in battle. T he first is the serpent-ringed Aegis, the shield of

Zeus himself, which, when shook, wraps Mount Ida in clouds and

strikes men down with fear. T he second is the awful Gorgon’s head

on her breast. Feminist philosophers such as Kristine Downing and

Mary Daly would explain these attributes as honoring the shadow

side of woman and the dark sources of her power.7

Understanding the Emotions

Let us now examine the rage of Achilles through the paradigm of various disciplines and see whether their insights are helpful:

Greek philosophy; Freudian psychology; existential philosophy;

Christian dogmatism; and, mediation theory.

The ancient Greek view of the soul holds that the soul is divided

into reason (nous), appetite (epithymia), and spirit (thymos).

“Thymos” to the Greeks was “spiritedness,” where pride, a need

for recognition, and courage resided. W hen this part of the soul

was not satisfied, it reacted with “spirited” emotions, such as

shame and rage. Plato, for example, argues for this division of

the soul by describing examples of inner conflict: I desire to look

at a corpse (appetite) but I know that I should not (reason) and

I feel ashamed (spirit). T he similar, Aristotelian view holds that

the human soul is divided between rational and non-rational,

and the non-rational is further divided into parts obedient and

not obedient to reason.8

To the Greek philosophers, however, participating in an emotion

such as rage brought human beings closer to the world of

the gods. T o them, it was not the human beings who have their

passions, but rather the passions that have their human beings.

Further, rage belongs to a heroic character. I t is not simply deducible

from external provocations: “Achilles is wrathful just as the

North P ole is icy.”9

In the Iliad, Achilles’ rage was more of a force of nature than

an emotion. Even that early in our understanding of anger, a

question can be raised whether A chilles’ desecration of Hector’s

body was his losing control or taking control. S artre would favor

the latter interpretation, namely that rage is a strategy and has

a purpose. I n fact, by expressing rage, a party may be purposely

seeking to elevate him or herself into a position to be able to

pass judgment on the other party who has wronged him or her

and to have it both ways, that is, to place his or her claim before

the judge, while at the same time being the judge. T he substantive

disagreement between Sartre and the Greek philosophers is

whether the psyche is divided between controlling and controlled

elements. T he Greek philosophers saw appetites and emotions as

largely involuntary reactions, which ought to be controlled by the

exercise of reason. Sartre sees appetites and emotions as voluntary

actions, which are themselves forms of control. S artre denies the

distinction between voluntary and non-voluntary psychic elements.

Feeling ashamed about a desire I know I should not have is

not a battle between passive and active, chosen and un-chosen

elements of the soul, but a tension between equally voluntary,

equally intentional, yet distinct modes of consciousness. T ake

anger for example. Sartre’s thesis is that anger – like any mode

of consciousness – is a way of living and in fact, a way of choosing

one’s relation to the world. O ne does not “give in” to anger;

anger is chosen. However, to choose anger is not to reflectively

distance oneself from one’s anger and then embrace it after weighing

alternatives. T his would be to assume a split between the

rational and emotional sides of the soul. Disagreeing with the

Greek philosophers, who claim that choosing and directing are

actions unique to reason, Sartre would say that emotion chooses and directs. Reason does not stand back and choose my emotion;

emotion chooses to reveal the world.10

Psychological theory is in accord. Freud coined the term

“narcissism” as early as 1911 and four years later recognized the

aggressive impulse as a facet of narcissism. I t has come to be

understood in the field that Freud’s “aggression” is close to the

current concept of “narcissistic rage.” As Kohut wrote in the early

1970’s, this narcissistic rage is a reaction to the frustration of the

omnipotence of the grandiose self. T he integration and repair of

the damaged self through an individual’s capacity for empathy for

his offenders can cause a “shift” of the aggression produced by this

narcissistic rage. Just so does Homer recount A chilles’ transition

from narcissistic rage to a capacity for compassion and concern.11

Earliest Christian dogmatism considered anger something to

be restrained. P aul, in 2COR 12:20 and GAL 5:20, uses “thymos” in

the plural to designate outbursts of rage, correlating with infantile

or narcissistic rage. Note that the early Christian philosophers

much more frequently used “thymos” to connote rage, rather

than spiritedness, as did the Greek philosophers. GAL 5:19-21

includes this type of anger in a list of vices as “the works of the

flesh” along with fornication, impurity, licentiousness, idolatry,

sorcery, enmities, strife, jealousy, quarrels, dissensions, factions,

envy, drunkenness, and carousing.12 S t. Augustine (354 – 430 CE)defined rage as inherently aiming at revenge (iraappetitvindictam).

Pope Gregory I (c. 540 – 604 CE) included rage or wrath

in his list of seven deadly sins, along with lust, gluttony, greed,

sloth, envy and pride.

Confronting the Emotions

Now, what to do when confronted with the angry family law

litigant? How does one assuage the wrath of Achilles? I suggest

that Homer had it right and that the same martial arts techniques,

these attributes of the goddess Athena, which have matured over

a millennium in defending against physical aggression, provide

a method. I n fact, contemporary mediation theory specifically

adopts martial-arts terminology and attempts to utilize martial arts

techniques in the “principled negotiation” developed at the

Harvard Negotiation P roject.13  Such literature is replete with terms

such as “negotiation jujitsu,” “pushing back,” “side stepping,”

“deflecting,” “stepping aside,” “turn their strength to your ends,”

etc.  Unfortunately, if a very brief intellectual discussion of an art

and discipline enabled one to use it effectively in the real world,

we lawyers would all become accomplished trial attorneys as soon

as we were handed our JD’s.

Be that as it may, I will describe some techniques from the

Japanese martial art of aikido that may be useful in dealing with the angry family law litigant.

Aikido is a fairly modern martial art invented in the 1930’s

by the martial genius Morihei Ueshiba, although many aikido

practitioners proclaim that aikido techniques derive from a much

earlier period. Ueshiba originally called his art aiki-budó. After

it was assimilated into the Butokukai in 1941, its name changed

to aikido.14 Despite its early roots, aikido is a modern martial art

because it was created after the M eiji period (1868 – 1912 CE)..

Further, the more one seeks to glorify Aikido’s roots, the less one

acknowledges Ueshiba’s greatness. S till further, from a mediation

perspective, it is far more useful to utilize techniques invented in

a comparably peaceful era when martial arts had evolved from a

Bujutsu to a B udo during the Tokugawa bakufu (1603 – 1868),

than to seek to utilize martial techniques designed for slaughter

during the Yoritomobakufu (1190 – 1199 CE) for principled negotiation.

There are great differences between the Bujutsu, or martial

arts, and the B udo, or martial ways. T he Bujutsu are combative

systems designed by and for warriors to promote self-protection

and group solidarity. T he B udo are spiritual systems, not necessarily

designed by warriors or for warriors, for self-protection of the

individual. I n any event, as aikido was invented in the 1930’s, it

is certainly not a classical Bujutsu(koryúbujutsu) and, by definition,

not a classical Budo (gendaibudo). I t is a modern B udo.15However, to consider aikido as a B udo, more spiritual system than

combative system, does not mean that its martial techniques,

and thus their facility to diffuse anger in both the physical and

psychological realm, are any less vital.

The spiritualism which pervades aikido is Buddhism, including

elements of discipline and paradigm-shifting techniques of

Zen Buddhism, rather than the elaborate ritualism of the Tendai

and Shingon sects.16

That said, aikido excels in “tai sabaki,” body-shifting; techniques

of entering, blending and moving off the line of attack to

diffuse resistance, resentment and anger, allowing the possibility of

reconciliation. Wonderful. W hat does this mean? T o be a successful

martial artist, one must have control of oneself. A successful

mediator must also have control of oneself. T he parties’ anger or

irrationality is the parties’, not yours. Aikido offers some practical

techniques to accomplish this. Perhaps the easiest is to control

your breathing. Try to breathe from your belly, not your upper

chest. Controlling your breathing causes a number of physical

and psychological changes in the body. I t also gives the mediator

something to do and succeed at, other than becoming fixated on

a party’s rage. Another Aikido technique for accomplishing this

is called “centering”. This is directing your consciousness to your

lower abdomen, the “seikatanden” or “hara,” an area called

the “one point.” O f course, you want to try to relax physically:

Drop your shoulders and soften them. Certainly no mammalian

posturing! N o staring contests, either!

First and foremost, you must remain professional, someone

worthy of respect. T he angry party will often seek to drag you down

to his or her level, or below. Do not cooperate. Very often, this is

enough. Consider how much energy it will take the raging party

to maintain his or her rage and how little energy it will take you

to remain calm, relaxed, breathing deeply and naturally.

If that doesn’t facilitate principled negotiation, then I would

recommend using a more dynamic aikido technique. Although

some mediators favor techniques such as “side stepping,” “deflecting,”

and “stepping aside,” I do not. Aikido with its Zen Buddhist

roots prefers engagement, to ducking, bobbing, and weaving.

Aikido has a technique called “irimi” or “to enter.” On the

physical plane this involves a strong forward movement toward the

attacker characterized by a powerful twist of the hips permitting

the aikidoist to enter the attacker’s space and leave the attacker

weakened with his “kuzushi” or balance broken. I am, of course,

discussing the use of martial art techniques for mediation, not

martial art techniques as a trial tactic, for which, of course, they

can be used.17

A Simplistic Ex ample

Now let me give you a very simplistic example of how the aikido

technique of “irimi” may be used. A very recently separated

husband and wife have sought your services. They have a lovely

10-year-old girl together. T he husband has left the wife to live

with his girlfriend in her apartment. B oth parties are fixated at the “negative intimacies phase” -- demonstrating for you insult

trading, struggles over power and control, and abusive anger.

You have screened for domestic violence and have determined

that mediation can proceed. The first issue presented is contact

between the girlfriend and the daughter. In a joint session, the

husband delights in telling you that the girlfriend is a far better

mother to the daughter than the wife ever was and he’ll decide

whose company his daughter will be in, not his wife. T he wife

responds that the girlfriend is a moral reprobate and shouldn’t be

permitted near barnyard animals. A nd there you have it.

Aikido, with its randori, defense against multiple attackers,

is sophisticated enough to understand well system dynamics. T o

this situation, you apply a technique that brings harmony to a

chaotic system. I n this simplistic example, I will deal with the

two “attackers” separately. Applying “irimi” to the husband, the

mediator enters his space, accepts the attack, applying centrifugal

force to “lead” rather than deflect the aggression. T he husband’s

statements are reframed. His high opinion of his girlfriend is

validated and his concerns are directed to specify what contact,

and how often, his girlfriend and his daughter shall enjoy.

The mediator similarly accepts the wife’s attack and enters

her space. S he is validated as the child’s mother and her concerns

about the girlfriend are acknowledged. Her attack on the character

of the girlfriend is led to the specific types of contact the girlfriend

and their child might share at this time; what would be tolerable

to their child?

Although this is a simplistic example, it should demonstrate

that aikido principles are in accord with contemporary mediation

theories, even those which do not presume to teach “negotiation

jujitsu.” Just as in the client-centered approach to mediation,

the use of aikido techniques places the parties’ fears, prejudices,

concerns, beliefs, and values as the focus of the process.18

Now, proceed with this mediation, and may the goddess Athena

bless you!

Endnotes

1. Opening lines of Homer’s Iliad, translated by Robert Fagles, 1990.

2. Hagedorn, J.& Caulfield, J., Real Lawyers Don’t Give In To Stress, Boston Bar

Journal, Vol. 37, No. 5; reprinted, Maine Lawyer’s Review, Vol. 1, No. 12, 1993.

3. Nelly, R., The Divorce Decision 9, 168 (1984).

4. Jaffe, P. G. &Geffner, R., Child Custody Disputes and Domestic Violence: Critical

Issues for Mental Health, Social Service, and Legal Professionals, CHILDREN EXPOSED

TO MARITAL VIOLENCE, 371, 374 (G. W. Holden, R. Geffner, & E. N. Jouriles, eds.,

1998).

5. Homer, The Iliad, Butler translation.

6. Meullner, L., The Anger of Achilles: Menis in Greek Ethic. Ithaca: Cornell University

Press, 1996.

7. Kinsley, D. R., The Goddess’ Mirror: Visions of the Divine from East and West,

State University of New York Press, Albany, 1989, pp. 139-164.

8. See Book IV of the Republic (Cambridge: Hackett, 1992.)

9. Wenning, M., The Return of Rage, Parrhesia, No. 8, pp. 89-99, 2009.

10. See generally The Emotions: Outlines of a Theory (New York: Citadel, 1948);

See also Sartre’s Ethics of Engagement: Authenticity and Civil Virtue, T. Storm Heter

(Continuum International Publishing Group, London, 2006).

11. Hyphantis et al, Narcissistic Rage: The Achilles’ heel of the patient with chronic

physical illness, publisher and licensee Dove Medical Press Ltd., 2009.

12. Kelhoffer, J. Suppressing Anger in Early Christianity: Examples from the Pauline

Tradition, Greek, Roman and Byzantine Studies 47 (2007) pp. 310, 311, and 320.

13. Fisher, R. &Ury, W., Getting To Yes Negotiating Agreement Without Giving In,

Penguin Books Ltd., New York, New York, 1981.

14. Ueshiba, M., Budo Teachings of the Founder of Aikido, Kodansha International,

Tokyo, 1991, pp. 16-18

15. Draeger, D. F., Classical Bujutsu, Weatherhill, New York and Tokyo, 1973, pp.

11-32; Draeger, D. F., Classical Budo, Weatherhill, New York and Tokyo, 1973, pp.

11-40.

16. Caulfield, J., Book Review of King’s Zen And The Way Of The Sword, Aikido

Today Magazine, Vol. 9, No. 1.

17. Caulfield, Aikido and the Trial Attorney, Aikido World, Volume 9, No. 2; reprinted

New England Martial Arts, Volume 1, No. 2.

18. McKnight and Erickson, Mediating Divorce A Step-by-Step Manual, Jossey-Bass,

1999.