Note: Names and other private information has been edited to protect clients anonymity.
Clarifying Needs
A couple I worked with had trouble resolving all of their issues in mediation. They had the money to pay for lawyers, so they were tempted to walk away – it’s appealing to try to give the problem to someone else in the hope that they will take care of it for you. But the reality is, that it’s your life. Outside experts don’t have the motivation to resolve your problems — their lives are not on hold. They also lack the understanding of your needs and priorities.But she went to see a lawyer. He said, “If we sue to demand a lot of the assets, he will fold and give you the children.” When she heard the lawyer and thought about the emotional consequences of such duress — how angry her husband would be, and how much the children would suffer in the battle — she suddenly realized that that was not what she wanted to do and, more clearly, what it was that she really needed. The children were supposed to stay with their father, but no amount of money was worth putting them through all of that.
She realized that the problem she had had in mediation was that she didn’t know what she wanted. Once she clarified her goals, she came back to mediation stronger, ready to stand up for what she wanted.
She said, “My lawyer has told me that if we go into your business, look at all the books and freeze your assets, I would probably get $1 million from you in our divorce settlement. In order to settle this quickly, keep the peace for our children, and allow me to move in with my new person, I will take $500,000.” And the husband said, “That sounds fair.”
Creative Alimony
Lucy and Doug came to mediation with one unresolved issue — how much alimony was Doug to pay to Lucy, and for how long?The law in NY governing alimony is unpredictable. It lays out 14 factors, but all are discretionary and are applied by judges in a haphazard manner, so alimony is an issue which attorneys fight over in a long, drawn-out (expensive) fashion.
Lucy needed money. She had 2 children from a previous marriage. She worked part-time in a store for minimum wage. Doug, on the other hand, was a computer person and made close to $100,000 a year.
Doug and Lucy had consulted with attorneys, and knew that Lucy would get some alimony — the question was how much. We began to talk about amounts and durations, and realized that we needed more information. We agreed to meet again in a few weeks, during which time Lucy would study her expenses and share information with Doug about them, and about her budget.
During our break, I thought about Lucy and Doug. One of the reasons the issue was so difficult was that they were both pretty young — in their early 30’s — and their marriage had been of short duration — only 4 years. Because of these facts, there is a good chance that Lucy wouldn’t get ANY alimony in court.
But I also knew that Doug didn’t want to leave Lucy flat, with no money, and risk harm to her and her children. He wanted to negotiate alimony consistent with his sense of fairness. And Lucy needed some time to get back on her feet and figure out how she was going to manage without Doug’s income.
When we came back together, we discussed Lucy’s budget and needs, and then I proposed a formula which sets maintenance based on the differenc es in income and the length of time the couple had been married. Lucy and Doug were both relieved to have an option which seemed to fit their needs, and which they both found was fair.
Mediation allowed them to think about their real goals — Doug’s was to be fair and allow Lucy some time to adjust to their separation — and Lucy’s was to have some time to figure out how she would manage financially in the future. We were able to brainstorm creatively and find a solution to their problem tailored for them.
Fighting About Taxes
In case I mediated Sally, the wife, insisted that she take the tax deductions every year for their 2 children, even though she earned half of what her husband Earl earned. She would pay less of the children’s expenses. Earl argued that this arrangement was unfair.Initially, I wanted to side with Earl because what Sally proposed seemed unfair – and with two children, they could have easily split the tax deductions – but instead I asked Sally why she didn’t want to divide the deductions.
She answered, “I feel terribly betrayed by this man. Earl promised to stay with me for the rest of his life and now he has changed his mind. He is promising to take care of his children in the future, but I fear that he will again change his mind. If he stands by his promise to provide for and care for the children, in 2 or 3 years I would probably be willing to give him some of the tax deductions.”
When Earl heard this he said, “OK, that’s fine with me. Sally can have the deductions.” I said, “Do you want to put into the agreement that you will reconsider this a couple of years down the road?” Earl said, “No. I trust her.” Sally’s eyes widened in surprise at this acknowledgment by her husband.
What is the Apartment Worth?
She: the broker said to list it as $3.8 million and then see what we could get. He: well the stock market has dropped and now the apartment is probably worth closer to $2.8 million. Voices began to rise. and then he said, “M–, I didn’t think we would get into this. Arguing over numbers like this? What do you need? How much do you want?” She: I just want this to be fair. I originally thought I would get half of our assets and you’re proposing to give me less. And you’re keeping the apartment which is worth more than anything else. He: how about if I give you 50% of the apartment whenever it is sold? She: that sounds good.Mediation allowed him to express concern for her feelings, and allowed her to feel heard. They found a unifying goal — fairness — and were able to work together to find what they both felt was a fair solution.
Wife’s New Boyfriend in Husband’s Car?
A couple with lots of debt came in to mediate. They had $50,000 in student loans, from their college educations and from their daughter’s. They had an additional $30,000 in credit card debt.Albert thought about filing for bankruptcy. Elizabeth was upset and angry at this idea. She didn’t want her credit hurt. She blamed him for the debt, and he countered by blaming her.
As they discussed their debt, an issue came up about the car. Right before they separated, they’d bought an expensive car, with a car loan with high monthly payments, which Albert kept after they separated. Elizabeth complained about the high costs, which she was still sharing. But then she said, “I’d feel better about paying this loan if I could use the car.”
Albert seemed reluctant to let her use the car. When I asked why, he revealed that he had lent it to her once, and she had used it to go someplace with her boyfriend. Because of his anger and hurt about her boyfriend – who was the catalyst for their having separated – he was very angry when he later discovered that “the other man” had ridden in “his” car. Albert did not want Elizabeth to use the car.
Elizabeth was able, in mediation, to hear how angry he was, and to understand how much she had hurt him. She said she was sorry for the pain she’d caused him, and that if she had been able to find another way to do things, she would have. But she hadn’t been – she had done the best she knew how to do – and now this was the situation. She was with another man.
Through the discussion, Albert had a chance to let Elizabeth know how bereft he was feeling, and how angry he was at her – and when he felt really heard by her, his feelings eased. He proposed a schedule for sharing the car, and Elizabeth said she would be willing to split the car payments if they could do that.
He had been unemployed for a while, and she was angry. She felt that she had assumed a lot of the financial pressure and responsibility during those years, and now he wanted her to keep paying and paying.
But during mediation, she apologized for using the car with the boyfriend. When his anger began to abate, Albert could hear better Elizabeth’s feelings about a fair division of their debt. He agreed that he would not declare bankruptcy and he assumes a larger portion of their debts.
They had a lot of problems built in, but then they were able to hear each other and give each other acknowledgment and the easing of the feelings led the way for them to compromise. There were economic and non-economic problems and the non-economic solutions cleared the path for resolution of the economic issues.