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193 - Improving Your Communication To Help Your Divorce or Custody Battle.

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In this show, Leh and Todd discuss how the stress of a divorce or custody battle can really hurt communication between co-parents. In order to help, they used Dr. David Berlo's basic communication model, SMCR, as a framework to break down the 4 basic elements of good communication. They talked about the different ways that parents can work on improving their communication to help reduce the tension in their divorce and hopefully reduce the costs of their litigation as well. They offer simple suggestions that can go a long way in making sure you don't say something that launches World War 3 with your children caught in the middle of the battle.

Leh Meriwether: Welcome everyone. I'm Leh Meriwether, and with me is Todd Orston. We are your co-hosts for Divorce Team Radio, show sponsored by the Divorce and Family Law firm of Meriwether & Tharp. Here, you will learn about divorce, family law, and from time to time, even tips on how to save your marriage if it's in the middle of a crisis. If you want to read more about us, you can always check us out online Well, Todd, let's get going.

Todd Orston: All right, I'm ready.

Leh Meriwether: What are we getting going on?

Todd Orston: What do you mean by that? Are you saying that I don't know what the show is about? I mean, I'm not exactly sure what you're implying here.

Leh Meriwether: No, I was trying to say maybe you can introduce the topic today.

Todd Orston: See, the stuttering and all that, I mean, you feel guilty about something. I can tell. I take offense at ... No, I don't. I don't actually. Actually, the show is about effective communication in the midst of a divorce or custody battle. Too often we have seen what is said and what is heard. There is a vast Grand Canyon like divide between those two. Absolutely, I'm really excited about this show. We've talked about it indirectly in other shows, but doing an entire show on this, I can't tell you, if people could learn how to be patient and how to apply a filter that doesn't always assume the worst in terms of what is being said, so many problems in these divorce and custody cases would be resolved or avoided.

Todd Orston: By the way, sometimes your radar in terms of what is being implied is correct. I'm not saying that you shouldn't be on the lookout for somebody truly trying to imply something negative, but very often, it's just not there, yet people assume that it is, and that turns into a fight.

Leh Meriwether: Today, we're going to break down ... There was a doctor, his name was David Berlo, that came out with a basic communication model. The initials for it are SMCR. You know what that means, Todd?

Todd Orston: I do.

Leh Meriwether: A source sends a message through a channel that is interpreted by a receiver, so very basic. We're going to break down today the source, we're going to break down the message, the channel, and the receiver, and what that means at each level, where there's often breakdowns, and we're going to focus on divorce because divorce adds a whole nother layer to it, and then what you can do to improve really the first three, because those are the ones that are in your control. The receiver, not as much. If you can do the first three right, then that will increase your odds of the receiver receiving a message that you intended, the same message.

Leh Meriwether: The channel is the method in which it's delivered, the message. But to give you an idea, just before we can get to the complexity that divorce adds to communication, I'm going to just give you an example of how just different channels of communication can deliver the same sentence differently. Let's say a text message goes out that says, I didn't say you stole the keys. That's all the message is. That can be interpreted any number of ways by the receiver. But if you were to say that personally, or at least by over telephone, your inflection can change the meaning of that very sentence.

Leh Meriwether: Here's an example, I didn't say that you stole the keys. I didn't say you stole the keys. I didn't say you stole the keys. I didn't say you stole the keys. Depending on what word you emphasize when you're communicating can change the interpretation of the same exact sentence. That was one, two, three, four different ways that sentence can be interpreted depending on the inflection that I gave a single word inside that sentence.

Todd Orston: Right. Again, according to Berlo's model, there's the encoding, how is the message given? And then there's that decoding, how is it received? Depending on, in essence, there are a number of factors, communication skills, attitude, knowledge, a whole bunch of other things, that if the receiver is using, I'm just going to use this term, which is not Berlo's term, but it's probably incorrect, but if the filter that that recipient is using is not a positive type of filter, then I did not say you stole the keys.

Todd Orston: Well, what you're saying is somebody stole the keys. I didn't say it, but maybe some other people are saying it. I didn't say that you stole the keys. Hey, they're gone. I don't know if it's somebody that you had steal the keys on your behalf, but the keys are gone. I didn't say you stole the keys. You may have "misappropriated" them. You may have taken them from where I placed them, or I didn't say that you stole the keys, you stole a whole bunch of other stuff, but I didn't comment on the keys. If my filter is sort of that negative filter, depending on how you say it, I can interpret it in a very negative way, no matter what word you stress.

Todd Orston: It's funny, what we're reading from and the example you can see online, the one that you just read, Leh, the words in question that are stressed are bolded. They are underlined. In an email, especially if we're talking about written communications, that doesn't happen. You're not bolding, I did not say you stole the keys. I did not say that you stole the keys.

Leh Meriwether: Especially in a text message, because I don't think you can bold ... I don't think you can bold a text message. Let me jinx at the future, but right now-

Todd Orston: Right. You have to understand that when you're writing this, then the recipient, when they are decoding, they're going to apply their own bolding. They're going to interpret it in the way that they think they need to, or should interpret that statement.

Leh Meriwether: We often have these problems in ordinary situations, and by the way, we're going to, if I didn't already say it, we're going to break down each one individually, source, message, channel, receiver. We're going to go into each one of those. But before we do, because we want to focus on divorce and custody battles, Todd, what kind of things ... What makes communication in the context of a contested legal case, what makes it even worse?

Todd Orston: The fact is you're dealing with high emotion. We've said this time and time again, we don't have to say it, especially to anybody who's either been through it or is going through it. You're dealing with a situation where the person on the other side with somebody, at one point you trusted implicitly. They were your partner in one way or another, and now you are at odds. Now, unfortunately, there may be a level, could be a high level, medium, whatever, of distrust, but emotions are running high. Oftentimes, especially if you're in the middle of litigation or heading into litigation, or even to be perfectly honest, post litigation, depending on what that litigation look like, unfortunately, there are going to be trust issues.

Todd Orston: So, you have people that are just going to have that negative filter and assume the worst, assume that what is being implied somehow hurts you, and therefore, instead of just accepting it, you retaliate or you have to respond, and usually, the response is an aggressive response.

Leh Meriwether: All right. That high emotion kicks in that filter where you automatically, assuming everything the other person says is coming from a negative point. That response is often from the point of, I have to win. We're in a contested case right now. I have to show the other side is wrong and so I have to prove my point, and so that causes things to escalate. Things turn from talking with the other person to talking at the other person and we stop listening to understand, and instead, we're listening merely to prepare our counter-argument.

Leh Meriwether: That's where we'll often lose the ability to go, oh, wait, oh, that ... You mean this? You weren't trying to prove a point or argue something. You were just trying to relay, hey, your keys are missing. You're asking if I've seen them. You weren't meaning that I may have taken them or stolen them. You just want to know where the keys are. Personally, I had to-

Todd Orston: I think you took the keys. I'm just saying that I ... I'll be honest with you, I don't trust you. I'm I'm just putting this out there for all. I don't trust you around my keys.

Leh Meriwether: Well, your keys are very pretty.

Todd Orston: Well, thank you. Thank you. It's a unicorn.

Leh Meriwether: A unicorn. Oh boy. Of course, as this conversation is being recorded, there's always that fear that your conversation is being recorded, and so that impacts what you are saying and how you are taking things, and then attorneys get involved and things get expensive. When we come back, we're going to break down what it means to improve your communication. How can you improve your communication in the midst of a divorce?

Leh Meriwether: I just wanted to let you know that if you ever wanted to listen to the show live, you can listen at 1:00 AM on Monday mornings on WSB. So, you can always check us out there as well.

Todd Orston: Better than counting sheep, I guess. Right? You can turn on the show and we'll help you fall asleep.

Leh Meriwether: There you go.

Todd Orston: I'll talk very softly.

Leh Meriwether: Welcome back, everyone. This is Leh and Todd, and we are your co-hosts for Divorce Team Radio, a show sponsored by the Divorce and Family Law firm of Meriwether & Tharp. If you want to read more about us, you can always check us out online,, and if you want to read the transcript of this show, or go back and listen to it again, you can always find us at Okay. Today, we are talking about effective communication in a divorce or custody battle. I mean, communication can be very difficult as it is.

Leh Meriwether: What we're doing is we're breaking down the really a communication model, or using it almost as a structure for this show. Dr. Berlo, yes, Berlo came up with this communication model. The initials are SMCR, so a source sends a message through a channel that's interpreted by a receiver, and so we're breaking down each one. We're going to start with source. In the last segment we talked about how divorce, or any contested custody battle, or legal battle really makes communication much more difficult because of several factors that can impede good communication.

Leh Meriwether: Let's start with the source. The source is you, so if you are starting a conversation, or you're getting ready to send a message, you're the source of that message, and what can influence what you put in that message is your communication skills, your attitudes, your knowledge, and your personal story. So, your personal story includes the life events that have happened to you that can impact how you communicate and the culture you were brought up in.

Leh Meriwether: By way of example, if you came from a family where yelling was perfectly a normal form of communication, and just everybody just tended to yell at each other, then you might think you're talking in a normal tone, when your spouse, in a divorce case, the judge thinks you're actually yelling, so that can create a problem, even though you're not thinking you're being aggressive, everybody around you thinks you.

Todd Orston: Yeah. We see that quite often where when we step back and we look at communications, what happened, it's like, well, it's definitely aggressive, but is it abnormal for that person? It doesn't mean it's right, don't get me wrong. There are just some people, to your point, that are wired a certain way, and it could be due to life experience. Basically, it's learned behavior, right? I mean, if that's the way they were raised.

Todd Orston: Unfortunately, we see these kinds of communication breakdowns, especially when a relationship is ending and people are going through, or about to go through these kinds of cases, where that kind of a communication method or style, oh, it creates enormous problems, and I've seen judges get really upset because they'll listen to it and they'll be like, that's unacceptable on any level. Then that can impact your case.

Leh Meriwether: Yup. Let's say you are a normal ... I don't want to say what's normal and what's not, but let's say you communicate in a normal, calm patient tone, but because of the divorce, stress gets in the middle of it, and you feel like, Oh my gosh, I mean, all this money is on the line. My time with my children's on the line, and maybe you're angry about the process, maybe you're worried about it. All those things can influence how you communicate, how you, when you communicate, you may be louder than you normally would be.

Leh Meriwether: Or perhaps you're shorter. Maybe you don't give enough information. Maybe you're the kind of person that kind of shuts down when the pressure gets really on, and that could be a problem too, especially when you need to tell the judge, or you need to tell your lawyer, or the judge in a courtroom, this is what I want and here's why I want it, but maybe you have trouble communicating that because the stress is causing you to shut down. So, it can go either way. You could maybe say too much or too little.

Todd Orston: Yeah. Here's something that I say to people all the time, and I say it for two reasons. One is just because it's the right thing to do. Two, I say it because as an attorney and as somebody who is responsible for representing my client to the best of my ability and making sure that they have the information they need to make good choices and to act in a way that isn't going to make them look bad. I will tell people all the time, sort of like those criminal law Miranda warnings that police give to people.

Todd Orston: Everything you say can and will be used against you. So, you need to go into every communication thinking that my words, whether they're written, whether they are spoken, that they can be collected and presented to a court at some appropriate time and they could be used against you, and I will tell people all the time, you have to rise above it, and sometimes that is the hardest near impossible thing to do, but I will often tell people, I don't care if they call you every name in the book. If they do that, politely say, I'm not going to put up with this, I'm not going to be treated that way. We'll talk when you're calm. Thank you very much. Goodbye.

Todd Orston: Then if you were recorded, then you took the high road. If you're recording that conversation, if you're in a jurisdiction where recording is permissible, Georgia, you can, then-

Leh Meriwether: If you're a party to the conversation.

Todd Orston: If you're a part of the conversation. That's what I mean. Then basically, you have that recording where you can say, look, I'm trying to co-parent or I'm trying to deal with these issues. This is how I'm treated. You have to be very careful, and again, for more reasons than one, try to rise above.

Leh Meriwether: We're going to get into a model that you can follow when sending a message to make sure you're not putting the wrong information in your message. We're going to get to that in the next segment. Some people are going okay, but I never worked on my communication skills before, maybe that's why I'm getting a divorce, but I'm in the middle of a divorce now, what can I do to communicate better? Well, the first thing I would say is, hey, you're listening to this show, so you're already taking the right step. Congratulations.

Leh Meriwether: But I mean, the fact that you're listening to the show is good. That means you're trying to learn. That's the number one thing you can do. I mean, communication at the end of the day is a skill. Some people may have a better talent, and perhaps, but I still see communication, at the end of the day, is a skill that can be developed, it can be grown and ...

Todd Orston: Or modified.

Leh Meriwether: Or modified.

Todd Orston: Because you may be a good communicator, but now you're dealing with stresses you never dealt with before, and therefore you have to relearn communication in terms of a skill in the context of now you are dealing with a divorce or a custody matter, but you are now dealing with this kind of a situation that you've never had to deal with before.

Leh Meriwether: Exactly. One of my favorite books I've mentioned on multiple shows is called Crucial Conversations. It is a fantastic book. We are not going to go into that book in the show, but I strongly recommend you read that book. It doesn't just apply to a marriage. Let's put this way. If you read that book, you'll be able to apply it to your relationship with your children, to your relationship with your boss, your employees, your potential customers. It is something that will apply at multiple levels. It is a very valuable book, and then attitude.

Leh Meriwether: We've talked about attitude. Your attitude in your case will absolutely influence, not just verbal communication, but nonverbal communication, because that can really come across in a courtroom. We're not going to go into all that about attitude. In fact, we did a whole show just about attitude, and I think it was ... how attitude is your secret weapon in your divorce. I think it was episode 120. I'd strongly recommend listening to that show to understand, but perhaps you're still struggling.

Leh Meriwether: I don't know what to do. That's what counselors are there for. You basically, at that point, you go to a counselor, not just to deal with the stress, but to help you, and there's counselors that are also life coaches. I know psychologists that are sort of like coaches too, and they work with you to, maybe you're a great communicator, but in the context of this divorce, like you said, Todd, the stress is causing you to just break down. You can't communicate effectively. A counselor can help you with that, and you're going to need that.

Todd Orston: I agree 100%, and I'm going to take it a step farther. Not only are they important, but I would tell you, for instance, you yourself could get a counselor. If the relationship hasn't soured, suggest maybe the two of you going to a counselor, even if you're going through a divorce. If you have children, there are parenting coordinators, there are people out there who take on this role of trying to facilitate a healthier relationship for you and that other parent, or whatever the situation is. I will even take it a step further.

Todd Orston: There are situations where if you see the relationship, which of course, we're talking again, the context of a relationship that's ending, but if you still have to have that working relationship with somebody i.e., you're co-parents, and you see it down sliding, you see a souring of that relationship, offer some kind of a counselor. Offer, hey, I'll go. If the other side even says to you, "Well, I don't want to pay for that," you may even want to sit. I don't know what your financial situation is. You may want to even think and go, "Fine, I'll pay for it." That's how important it can be.

Todd Orston: Think of it this way. If you have to pay, I'm just using a number, $200 to go see a counselor, what's better? You paid $200, or you pay $2,000 to an attorney because the relationship got so bad that unfortunately you're at each other's throats.

Leh Meriwether: When we come back, we're going to continue to break this down and get into the other three aspects of the communication channel.

Todd Orston: Hey, everyone. You're listening to our podcast, but you have alternatives. You have choices. You can listen to us live also at 1:00 AM on Monday morning on WSB.

Leh Meriwether: If you're enjoying the show, we would love it if you could go rate us in iTunes or wherever you may be listening to it, give us a five star rating, and tell us why you liked the show.

Leh Meriwether: Welcome back, everyone. This is Leh and Todd, and we are co-hosts for Divorce Team Radio, a show sponsored by the Divorce and Family Law firm of Meriwether & Tharp. If you want to read more about us, you can always check us out online, If you want to read a transcript of this show or others, you can always find them at Well, today we're talking about effective communication, especially as it applies in a divorce.

Leh Meriwether: We're breaking down a model that talks about the communication, and that there's a source that generates a message that goes through a channel, and then is received by a receiver, and we were talking about, so you're the source. This is one thing you can actually control, and there's just a few more points we wanted to add to this that can influence the message that you draft, and then we're going to get right to the message part of it. Okay, so another thing that influences your ability to communicate is knowledge on the subject, because when you don't understand a subject, you can say something that the other person goes "Well, that's just stupid."

Leh Meriwether: Because you just are being ignorant of it or whatnot. So, in the context of a divorce and co-parenting, listening to the show improves your knowledge, reading books about the divorce process, reading our website. You don't have to read our website. I'm just giving examples, and going to a co-parenting coordinator, like Todd you just talked about, going together, or even you can go by yourself. That improves your knowledge so that you understand that ... You could say a sentence that in your head makes perfect sense, but in the context of what you're going through can sound stupid to the other person, but you wouldn't have a clue of that until you talked to your co-parent coordinator.

Leh Meriwether: Or even in some situations, your lawyer too. That's where I wanted to add this one last part, that your life story can influence you. It's hard to look at your communication in the mirror sometimes. That's where you need wise counsel around you. That could be your lawyer, your counselor, your real friends. Those real friends by meaning those that aren't afraid to tell you the truth, and you're going to need to listen to them because they may tell you something you don't want to hear.

Todd Orston: Yeah, and it may not be the person that just got done with a two year litigation where they went for the juggler. We've done shows on this. You have to choose wisely, and you don't want somebody who's been through it. You want somebody who navigated through a similar situation, who's going to be able to inject some reason and calm. If you have somebody who is all spit and vigor, they are just oh, take them to this and aargh. That's good for maybe a Friday evening where you just need to blow off some steam. Other than that, you need somebody who is going to be calm, who's going to really help you analyze the situation and help you avoid making a mistake that could seriously affect you.

Todd Orston: It could affect your custody rights, it could affect property rights and any other issues. Just be careful who you choose.

Leh Meriwether: Yep. It's interesting, you talk about blowing off steam on Friday evening because I'm going to leave this last little tip here, that often we are worn out by the end of the day. There's actually whole books about this, about how your willpower gets burned up by the end of the day. I can't remember if we had a whole show on this, but we could do a whole show on it.

Todd Orston: We spoke a lot about ego-

Leh Meriwether: It's called ego depletion. Yeah.

Todd Orston: Ego depletion. Right.

Leh Meriwether: There's actually a book out there about willpower by Dr. Baumeister, I think is his name, but anyways, and The Power of Habit talks about it too. There's a lot of books ... Here's the key takeaway, and you can go read about why you should do this. You should avoid communicating in the evenings when you're tired. You don't have enough willpower to filter your message. We're going to get into that in just a second, and then emotions will quickly kill good communication. It is better to communicate in the morning than the evening, because you have not exhausted your willpower from during the day.

Leh Meriwether: If you're in a bad spot in the evening and the person's insisting on a response and it's not something like, hey, can you pick up the kids in the morning? It's not something like that, walk away. Maybe just say, "Hey, I'm really tired, but I will respond to you in the morning." Respond by saying, I'm going to respond to you, but don't engage in whatever the issue is. Now, let's get into the message.

Todd Orston: Where the proverbial rubber meets the road. Look, we started the show by talking about the message. It's oftentimes not just what you say, but how you say it. We have spent a lot of time over the years talking about that, talking about how communication, actually there are studies that even nonverbal communication is far more impactful than what you say. So, you have to be so, so careful about how you word something, how you deliver a message, because even when you're trying to do the right thing, and I've suffered from this, where I'm like, I am really reaching across the aisle, I'm really trying to do the right thing. And the response I get, I'm like, wow, I didn't realize I was conveying that message. You have to be really, really mindful.

Leh Meriwether: Yup. We're actually going to have a whole show about the message. We won't go into this in total detail, but we do have Bill Eddy, and he's not only, I think he's an attorney, he's also a licensed clinical social worker, and he's written some absolutely amazing books on communication in the context of a legal battle, as well as dealing with high conflict personalities. I don't know how many books he's written now.

Todd Orston: He sold one or two copies. It's not that ... More like millions and millions in many different countries.

Leh Meriwether: Yeah, we're lining him up to come on to talk about one of his most recent books.

Todd Orston: He's been on before.

Leh Meriwether: He's been on before. His book I think is BIFF, and I'll explain what BIFF means in a minute. BIFF for Co-Parent Communication: Your Guide to Difficult Co-Parenting Texts, Emails, and Social Media Posts. We're going to go into more detail on that, but his model for BIFF is a great model. So, it stands for brief, informative, friendly, and firm. The channel is ... We're going to get into that next. Sorry, I'm not trying to deviate communication problems.

Leh Meriwether: We'll analyze the BIFF here, an example. Sometimes we, I'm not kidding, literally seen messages like this. You're allying dirt bag who does not deserve to see his kids. That was in response to a question. So, the question was, hey, can I pick the kids up on Thursday at 5:00? And that was the response.

Todd Orston: That's pretty positive. [crosstalk 00:30:18]. Yeah, personally, I don't see what's wrong with that.

Leh Meriwether: Well, it wasn't informative.

Todd Orston: [crosstalk 00:30:27].

Leh Meriwether: It expressed an opinion that he didn't deserve to see his kids, but it definitely wasn't friendly, but it was firm. It was firm. So, he got two of the four things. But a better response would be, it's my understanding you have asked to see the kids Thursday at 5:00, but judge's order says that you're to get the kids on Friday at 5:00 and that we are not to deviate from the order, so I cannot agree to that. She didn't call him any names. She kept it very informative. She referenced the order. She didn't reference that in you're a moron because the order says this.

Leh Meriwether: She was brief. That's the brief part. She was friendly, and she was firm. Sometimes people go, if I'm friendly, I can't be firm. No, she was friendly. She didn't call any names. She started off by acknowledging the request, and she just said, "I can't agree to that." She kept it very simple.

Todd Orston: Well, I mean like the example, she could have started with listen, respectfully, I'm just asking you not be a dirt bag. See, you're delivering. You can see, I mean, how could anyone be offended by that? It's again, not what you say, but how you say it. I'm here to help.

Leh Meriwether: Yeah, sometimes that term respectfully just doesn't work.

Todd Orston: Yeah. I don't really even know what a dirt bag is. I got to look that up after the show, where that comes from, but okay. The use of the word dirt bag in any context is probably not positive. But again, just be careful. If you want to have a healthy relationship, it starts with you, and it's not just, well, I didn't start it. Okay, but you can also do things to try and deescalate. If you call someone a dirt bag, even if they are, I get it.

Todd Orston: But even if they are, you can try to deescalate. Don't call them a dirt bag. Just try and take that high road, because in the long run, that's going to benefit you.

Leh Meriwether: Exactly. I want to add this one little thing, and then we're going to in the next segment. We're going to talking about the channel and the receiver. Just like you don't want to communicate when you're angry, you probably don't want to communicate when you feel sad, or you're overwhelmed by sadness or overwhelmed by guilt because we've seen people agree to things they never should have agreed to. If you are in one of those emotional states, don't send a message that basically gives away the firm. Let your lawyer communicate for you so that you don't make a big mistake. When we come back, we're going to talk about the importance of the channel and the receiver.

Leh Meriwether: I just wanted to let you know that if you ever wanted to listen to the show live, you can listen at 1:00 AM on Monday mornings on WSB, so you can always check us out there as well.

Todd Orston: Better than counting sheep, I guess. You can turn on the show and we'll help you fall asleep.

Leh Meriwether: There you go.

Todd Orston: I'll talk very softly.

Leh Meriwether: Welcome back, everyone. This is Leh and Todd, and we are co-hosts for Divorce Team Radio, a show sponsored by the Divorce and Family Law firm of Meriwether & Tharp. If you want to read more about us, you can always check us out online,, and if you want to read a transcript about this show or others, you can always find them at divorce Well, today we're talking about effective communication, especially as it applies in a divorce or contested custody battle, and we've been breaking down the different aspects of communication.

Leh Meriwether: There's a source, that's you, that sends a message, and through a channel that is ultimately received by the person you intend to receive it, well, hopefully intended to receive it. This is our last segment, and we're going to talk about the channel ... Now, the reason we left so little time on the receiver, just because you don't have a whole lot of ... These first three ones are what you have the most control over, and if you can do the most in these first three parts of the communication, then you improve the chances of the receiver receiving the message in a positive way and understanding your message in the way you intended.

Leh Meriwether: Okay. With technology, Todd and I have put together sort of what we consider a hierarchy of communication. This is the channel. When you talk about channel, you're talking about the five senses, hearing, seeing, touching, and smelling, and even tasting. I know that sounds weird, but the more of those you can have, with some exceptions, Todd, I'm sure will point them out, with some [crosstalk 00:35:43]

Todd Orston: Yeah, I don't want know you, so absolutely.

Leh Meriwether: But I mean, with some [crosstalk 00:35:52]. The more you have, the better the opportunity to communicate well. It starts off with verbal in-person because there's ... You can have positive body language or negative. Then there's verbal with like a FaceTime or a Zoom call where you can see the person, but there's no taste, there's no smell, which could be a good thing. Then you have plain old verbal with a phone call, and then you have written email and then text. To me, text is the lowest, is the one of the worst forms of communication because it's often too short. You can respond to it quickly, which often is a mistake, as we referenced before.

Leh Meriwether: Written email takes a little bit longer. You don't automatically check it. People aren't expecting an immediate response to it. So, those sort of the different channels as we see them and the reasons why one's better than another.

Todd Orston: Yeah. Now, there are dangers with, or potential issues, not dangerous with each of them though. Anything that includes visual, whether it's an in-person or zoom calls, some kind of video conferencing, well, obviously then those nonverbal cues become incredibly important. You're talking to somebody and they roll their eyes, or they just gesture in a way that in some way makes it appear as though they're just not hearing you, they're sort of minimizing your concerns, or whatever the issues are that you're trying to present.

Todd Orston: But if let's say you have just verbal where it's an auditory, where you don't see the other person, well, at that point, you still have dangers. Did you huff? Did you make some kind of a noise? Did you, of course say anything that can be taken the wrong way? Because those non ... Or pardon me, those other behavioral traits, if I looked at Leh and I said, "You're looking good." Well, absolutely, that's great.

Todd Orston: But if we were in front of one another and I say, "You're looking good," and I rolled my eyes, he'd be like, you're a jerk. I'm working out. What are you ... When it's a visual thing, you to be careful in how you move and things. If it's just auditory, you still have to be careful, and then when it comes to writing, you hit the nail on the head. I mean, an email, oftentimes people take a little bit more time. Sometimes not as much time as they need. On a text, it's just immediate it's boom, boom, boom, send, boom, boom, boom, send.

Todd Orston: Oftentimes, people aren't using full sentences and all that, and therefore you are leaving it up to that other person to interpret what you're trying to say, and oftentimes the interpretation is just incorrect, and people expect the worst and it creates problems.

Leh Meriwether: Yep. I do like texts to just say, what time does ... I didn't get the email or I can't find the email about the change to soccer practice [inaudible 00:39:29]. When does it start? Then the person texts back, it starts at 4:30 today.

Todd Orston: Yeah. But if-

Leh Meriwether: That's what you should use texts for.

Todd Orston: Yeah, if you start the text with, hey, dummy, where do you send that message about pickup times? Obviously that's ... Some fireworks will ensue.

Leh Meriwether: Right. Going back to the in-person, how that can be the most effective, because I'm a very ... I like to, when I communicate, I use my hands, my arms. One of the shows we did, didn't you have a study where it talked about how something like 80% of the-

Todd Orston: It's even more. Yeah. If I remember correctly, it was actually like, I believe in the 90s percent in terms of how important ... I'm sorry, go ahead.

Leh Meriwether: Body languages.

Todd Orston: Yeah. Right. Body language is incredibly important, and that can hurt you or help you. As a litigator who walks into court, we are always thinking about that. Where are we standing? How are we gesturing? What are our facial expressions like? How many times have I turned to a client sitting next to me and they're rolling their eyes at what's being said, and I say, stop it, enough? You're being observed by the court and you can't do that. Just listen and you'll have your moment to explain. Absolutely, it's important.

Leh Meriwether: I know this may sound weird, but it actually is critical. How many people have been talking to someone and they're probably relaying some great information in a very effective way, but you can't hear anything because their breath is so bad. It smells so bad. You're like, whoa, whoa, gosh, man, that's a bad breath. What the heck for lunch? That's where, going back, how in-person could be negative potentially, and so when you are having an important conversation, I know that may sound weird, but some people don't think about it. Just make sure you, I don't know, chewed some gum, brushed your teeth. I know that may sound ... Did you just come from a lunch where you had lots of garlic before your meeting?

Todd Orston: Now, if the person you're about to talk to loves Italian food, I have no problem. Have a bag with Italian food sitting right there. Let them smell it. [crosstalk 00:41:53] them into a good mood.

Leh Meriwether: Yeah. That's an excellent point. I mean, that's why the, talking about the five, how the channel includes the five senses, often you can have ... The information can be taken better if it's taken over a good meal that both people like the smell of the meal, the tastes of the meal puts you in a good mood. It's [crosstalk 00:42:17] easier to take some bad news.

Todd Orston: If I had a nickel for every time a little marinara behind the ear, absolutely. I have reached some fantastic settlements just a little bit of Italian sauce.

Leh Meriwether: Well, I mean, and we often make sure we have some good food and mediations to help the case settle.

Todd Orston: That's right.

Leh Meriwether: All those things can play into it, and so be cognizant of your communication. The channel that you're using to communicate, if you can avoid text, avoid it. Verbal we find to be best. Again, well, let me ... There are exceptions to the rule. This is going to blend over to the receiver. Sometimes there's been family violence. Sometimes you have maybe the person as a yeller. I mean, and the other person really shuts down. In that situation, yeah, then you've got to do written, I hate to say it, but written email's better. Written email's better, texts may be better. I still prefer email over texts. Slow down to write it.

Leh Meriwether: Take your time. I tell people to write it on a word document. First, because you don't want to accidentally hit send. Make sure you follow the BIFF model. Let's briefly talk about the receiver. That's the least part you can control. You're always the source of what you're saying, so don't allow the receiver to cause you to start saying things that will be used against you in court. I will say this. Crucial conversation actually has in there some tips on when you hear certain phrases from the receiver, those phrases can indicate the receiver's not taking it well, what you're saying, or they're misinterpreting what you're saying.

Leh Meriwether: So, definitely read that book because it can help identify it, and if you're really trying to persuade, not manipulate, let me be clear there, but try to share in a positive way your point of view with your soon to be ex-spouse. Seeing them have negative body language can let you know, okay, I'm not communicating this effectively. I need to change. That comes in with crucial conversations. They have some really good tips in there.

Todd Orston: I think you've communicated very well.

Leh Meriwether: Oh, well, thank you everyone. Hey, everyone. Thanks so much for listening. If you're in the middle of a contested case, please check out these resources and listen to our other shows.