Anatomy of a Divorce Mediation

I met Hank and Cindy in my waiting room, where Hank boldly stepped in front of his wife, eager to introduce him­self and shake my hand. I warmly shook his hand and then, ever conscious of my role as an impartial mediator, extend­ed my own to Cindy, along with a friendly greeting.

This was to be our first meeting to talk about mediating a divorce agreement between them.  I began by gathering a little bit of background history: the couple has been married sixteen years.  Hank earned his dental degree just before the marriage and operates a fairly successful dental practice. Cindy dropped out of college after becoming pregnant with their first of three children. As the children grew older, Cindy returned to school, eventually earning a master’s degree in geology. She works part-time as a college instructor.

We talked about the mediation process. Although I had previously sent each party an informational packet on medi­ation, I explained what mediation is, how it is confidential, how it compares with other forms of dispute resolution and how it typically works in separations and divorces. I emphasized that my goal would be to facilitate their communication in an impartial manner and to arm them with enough financial and legal information to arrive at an informed agreement. I cautioned that I would not be acting as an attorney for them, but as a mediator. I would not give them legal advice, but I would educate them about the law. Although I did not require them to do so, I suggested that they might each wish to consult with their own attorneys to coach them through the media­tion process. I did require, however, that near the close of the mediation, each review and obtain advice about the draft of the agreement with an attorney before I drafted it into final form. As for fees, I would request payment of a retainer and charge hourly for my services.

Hank and Cindy were eager to begin mediation. They seemed to understand the process and were agreeable to its terms. But was I ready to mediate between this couple? From the start of our session, I had observed and analyzed the balance and dynamics of power between Hank and Cindy. After all, mediation may be inappropriate for a cou­ple when one spouse is intimidated or easily manipulated by the other. And, certainly, a relationship characterized by domestic violence is ill-suited for mediation. However, if one spouse simply has more knowledge or is a more skilled negotiator than the other, mediation may still be quite work­able. The mediator may, without bias, use strategies to empower the other spouse. During our session, Hank and Cindy appeared to exercise fairly equal power in their rela­tionship, although Hank knew a little more about their finances; Cindy, then, would have to be armed with compa­rable knowledge in the process.

I told the parties I was prepared to tackle their mediation. They agreed to pay my fee out of a marital savings account. The parties then reviewed and signed the mediation fee agreement I had previously sent them. Among other things, the agreement stated that I may terminate the mediation if in my opinion, the participants insist on entering an agreement that is unconscionable or not in the children’s best inter­est. Before Hank and Cindy left, I emphasized that full financial disclosure is a must and that I would terminate the process upon any sign of concealment. I told them that before we could address long-term support and other finan­cial issues, they would each need to complete a sworn finan­cial affidavit and bring in all back-up documentation.

Session Two
At our second meeting, we established an agenda of issues to mediate and began the actual mediation. I asked the couple why they were splitting up. Hank explained that their lives had simply taken different directions. Cindy nod­ded her head, but her eyes filled with tears. I asked Cindy her view: she revealed that Hank had been having an affair with another dentist for the last six months. Hank blushed and asked Cindy why she revealed this fact when they had agreed not to bring it up at mediation. I interceded, express­ing that I could not do my job without knowing about such things. After all, although the parties were not in mediation for counseling, I needed to have a handle on the emotional dynamics between them to effectively facilitate communi­cation. This became especially evident when the parties began to discuss what to do with their marital home — the issue with which they chose to begin the mediation.

Hank wanted to buy out Cindy’s share of the house because he wanted to live there. He offered to pay her one-half of the couple’s equity in the home. Cindy absolutely refused, even after Hank tried to sweeten the pot by offering her an additional $20,000 in cash for her interest. She want­ed the house sold — no ifs, ands or buts. What was this about? Certainly not money! I probed the issue and learned more: it was about Cindy’s feelings — her mental image of Hank sneaking into the house with his girlfriend (as he had admittedly done) during the workday; it was her vision of Hank living happily ever after in their house with another woman. It was about Hank’s selfishness and deception. And, it was about Cindy’s emotional pain. All of this came out on the table and Hank heard it through for the first time.

The result was this. Hank came to understand Cindy’s feelings about the house. He also learned, with my input about the law, that a judge might well permit him to buy the house from Cindy. He decided however, that the cost of fighting for the house in litigation would be too high. He recognized that Cindy’s anger and resentment would be so great that he might win the house, but lose any chances of having a positive co-parenting relationship with Cindy after a divorce. This was too high a price for him to pay and he yielded to his wife’s wishes.

I was pleased that, with my help, Hank had come to empathize with Cindy and had a deeper understanding of her needs and interests. I had used the mediator’s tools in promoting this understanding, helping the parties express their thoughts and restate what they said to each other; I asked them how they each felt about what they were hearing from the other. This worked with Cindy and Hank: Hank heard Cindy talk about her pain. For the first time, he tearfully apologized and took responsibility for doing something wrong; he called her a great mother and a wonderful person. Though he wanted to be divorced from her, he had no wish to cause her more pain. Although Cindy greeted his words with an element of sarcasm, the tone in the room changed for good. Hank’s acknowledgment of his responsibility and of Cindy’s pain seemed to be cathartic to Cindy. She could begin to talk about the meat of the issues without quite so much pain and anger; she was better able to move toward solutions, rather than get bogged down in anger.

At the close of this long and draining session, I reflected that if these people had chosen to litigate their divorce, Cindy’s anger and Hank’s quest to live in the marital home could well have been the driving force behind an expensive, lengthy court battle which could have consumed the parties and destroyed any hope for a meaningful co-parenting rela­tionship. This type of discussion between parties to a divorce — which here culminated in Hank’s apology and its positive aftermath — has little or no place in litigation, but is a natural and inherent part of mediation. And it is through this face-to-face discussion that the parties can shake off some baggage, confront issues head on, come to understand the perspective of their spouse and usually come to an agreement.

Session Three
We launched into a discussion about a parenting plan for the children I gave Hank and Cindy a primer on the law as to custody, visitation and other parenting issues.  As the couple talked, I encouraged them to come up with solutions, and interjected my ideas on options they might consid­er only if they asked me or to help them get “unstuck”.  I tried to offer several creative ways to look at the issues. They easily agreed to joint custody, with the children primarily residing with Cindy. We came to an impasse, however, when Hank insisted on being with the children on alternate weekends while Cindy only wanted to afford him custodial access each Saturday. Each dug into their positions and would not budge. They asked me what I thought was fair. I declined to answer, reminding them their view of fairness would control—not mine.

At this point, in our search for a “win-win” solution, I tried to help the parties identify their true interests — that is, the needs and concerns underlying their seemingly intractable positions. After I posed some rather pointed questions, Cindy sheepishly acknowledged being worried that Hank’s girlfriend would accompany their daughter to her Sunday afternoon gymnastics class and would co-opt Cindy’s role as mother. In addition, she was concerned that Hank would not take the children to church on Sunday mornings, citing Hank’s irreverent mutterings about reli­gion during the marriage. Hank’s interest was simply to have a two-day period of time with the children.

With their underlying interests on the table, I helped the parties shape an agreement that met both of their needs. Hank would have visitation all weekend; he had no problem agreeing that his girlfriend would not accompany him and the children to any of their activities, including gymnastics class, for a two year period. He also agreed to take the chil­dren to church on Sundays. With this issue resolved, the ses­sion ended with the parties agreeing to a full schedule of custodial access and a co-parenting plan which they and I felt served their children well.

Session Four
By the fourth session, we were ready to discuss finances. I educated the parties on the statutory and estab­lished case law regarding child support and maintenance. We reviewed each party’s financial affidavits and back-up documentation. Cindy and Hank had already prepared detailed proposed budgets, projecting their probable expenses after the sale of the house and once they lived apart. We then analyzed how much net income each party would have to pay for his or her own expenses. As Cindy’s income was not enough to meet her projected needs, she argued that she needed Hank to pay her the difference. Hank agreed to pay something, but countered that Cindy should consider working full time to increase her earnings. He argued that if he paid Cindy the support she was requesting, he would not have enough income left for his own needs.

Cindy asked me how a court would rule on this issue. I suggested that they ask their own attorneys their views, not­ing that different lawyers might reasonably predict different outcomes. However, I did give them a general idea of how the law works, describing the mechanics of the Child Sup­port Standards Act and legal factors a Judge would consider and the case law governing mainte­nance awards (without predicting the amount that may be awarded in court).  I also warned that the courts are unpre­dictable and the unexpected happens frequently.

To break the impasse on the support issue, I recom­mended that Cindy and Hank hire an accountant. I explained that a CPA could analyze their circumstances and suggest money saving options by maximizing the tax advantages of the support package. I added that we may need an independent accountant in any event to determine the value of Hank’s dental practice. At this, Hank recoiled, sug­gesting that I was taking sides by proposing the valuation. I explained that part of my job is to empower both parties with enough information to reach an informed agreement. I viewed a valuation of the dental practice as a way to provide the parties with this information. I also explained that the present value of the enhanced earning capacity that Cindy’s master’s degree afforded her would be considered marital property and that it could also be evaluated. The parties talked and agreed to the valuations. Hank agreed to bring in the books and records from his practice to do the valuation.

Session Five
We used this session to meet with the CPA.  The CPA proposed “tax impacting” the parties’ support options by shifting the mix between child support and maintenance and by utilizing the child tax exemptions and credits. With the CPA’s ideas, we were able to “expand the pie” by developing a support package which allowed for significant income tax savings and therefore greater take-home pay.   Using this approach, there would now be enough net income to provide a support package that allowed both parties enough money to meet their budgets. The CPA left the session promising valuations of the dental practice and master’s degree in three weeks.

Session Six
We now had the practice and degree valuations from the CPA. Neither Hank nor Cindy wanted second opinion val­uations. They were willing to work with the CPA’s numbers. I had already given them a lesson on the Equitable Distribution Law. With thorough knowledge of the value of all of their assets, Hank and Cindy worked out a settlement: They would immediately sell the house and give Cindy all of the sale proceeds. Hank would pay her a distributive award over time with interest for one-half of the difference between the value of the dental practice and her degree. They would equally divide all of the other assets. They agreed to my recommendation that the CPA review and report on the tax consequences of the settlement. With all of the issues tentatively settled, I informed Hank and Cindy that I would provide them with a draft of the separation agreement in a few weeks and that, thereafter, they would need to schedule appointments with their attorneys to review the agreement. I suggested that they hire attorneys experi­enced in matrimonial law and open to mediation.

Session Seven
By this meeting, the parties had reviewed the settlement tax impact report of the CPA. They had also reviewed the proposed agreement and discovery materials with their lawyers. Cindy and Hank each wanted several small or mod­erate changes to the agreement but no further financial discovery.  After an hour, they negotiat­ed out the remaining loose ends satisfactorily. They also agreed that after the agreement was signed, Cindy would sue Hank for divorce, which Hank would not contest. 

The Last Session
The couple came in a week later to sign the agree­ment. They were both pleased that the process was over and proud that they could actually settle their divorce without “going to war.” The process took less than four months. The total bill for mediation including that of CPA was $4,800.00. They realized that the cost of hiring two litigating attorneys and possibly multiple experts would have been much more. The parties, having authored the agreement, were basically satisfied with its terms; it would be unlikely that they would be running back to court to modify the agreement. And, if changes are needed or breaches occur in the future, they had agreed to first attempt mediation before resorting to the courts. Although Cindy remained hurt by Hank’s conduct, the mediation process had set a precedent for productive future communications with Hank, which were necessary to provide the children a strong, positive parenting team. They signed the agreement and thanked me. I felt a wonderful sense of accomplishment.

Steven R. Sugarman, Esq.
Copyright 1996