“OPPORTUNITIES FOR CLARITY, UNDERSTANDING AND CHOICE: THE PRACTICE OF DIVORCE MEDIATION”

From Susan H. McDaniel, Don-David Lusterman, Carol Philpot, eds., Casebook for Integrating Family Therapy: An Ecosystemic Approach. Washington, D.C.: American Psychological Association, 2001, 87-99.

Carl D. Schneider, Ph.D., and Dana E. O’Brien, Ph.D.

The challenges for divorce mediators are two-fold. The most easily recognized is the task of working with people at the most helpless and stressed time of their adult lives. The less obvious challenge is actually more demanding: to resist the temptation to rescue people who seem so in need of our help. The zen of being a mediator is to intervene yet not control, to offer information and not advice, to identify options for clients without pressuring for a particular solution, to clarify choices without inserting our judgments about the right choice, to care passionately about outcomes yet not to be invested in any particular outcome.

As mediators we are challenged throughout the process: do we truly believe in this ascetic practice which abjures advocacy and advice? Can we hold to the simple faith that clients, if they will, can make their own decisions? But these subjective challenges arise only in the context of our objective work with the clients who opt to mediate, so let us first address the way the field deals with the challenges our clients face.

A couple entering marital therapy have reached an impasse in their relationship. Nevertheless, a hope remains of rebuilding the relationship. Often, therapy involves identifying patterns of interaction which are no longer effective for the couple. By helping them recognize these patterns and teaching what may be new skills in communication, the therapist helps the couple develop new ways to relate.

While the couple entering marital therapy may maintain a tenuous hope for rebuilding, couples approach divorce mediation with a very different set of attitudes and concerns. At least one party in mediation has reached a point where s/he has decided to end their relationship together and to move on without the other. It is a unique moment in their lives. They may feel a sense of shame and failure, anger or fear as they approach the mediation. And now they are being asked to sit in the same room and negotiate with the person whom, they feel, has caused these negative feelings. Many people in their lives may well have taken sides in the couples’ conflicts and they wonder if the mediator will do the same. In addition they have heard stories about the adversary system in divorce and are wary and defensive. Will they give too much away or make an uncorrectable mistake? Often they feel a sense of loss – loss of the many dreams and hopes with which they entered the relationship, and the loss of the financial partnership they may have had. They are no longer interested in learning about the problems in their communication nor interested in learning new ways to communicate. Well aware of those problems, they have already concluded that they are insurmountable.

The mediator, then, must commence by creating an environment which feels both safe and hopeful. These qualities can be transmitted in a variety of ways, including via the structure of the mediation, the mediator’s approach and the underlying philosophy of mediation. Ultimately, the process of divorce mediation helps the couple face the end of their marriage with a sense of mutual participation, and thus, ownership, in the decisions to be made. In this chapter we present a case which reflects an amalgam of a number of actual cases. We hope to illustrate how a focus upon the principles of separation and individuation within a structured process enables a couple to move to a sense of closure about the past. This in turns opens each person’s future.

ORIENTATION & THE CONTRACT

The Mediators: We are two mediators who are also licensed psychologists. One of us still maintains a major clinical practice; the other, after a decade as a full-time therapist, has shifted into doing full-time mediation and training of mediators nationally. We are capable of working individually; we offer clients the option of a co-mediation team. Sometimes this team is inter-disciplinary, with a therapist-attorney pair. In this case, we had decided to co-mediate as an opportunity to give further experience to the newer mediator. We have found that clients find co-mediation valuable for its male-female gender balance as much as for its disciplinary balance.

The Case: Marital mistrust was apparent even before our first meeting with Michael and Fran. The original contact with us was made through their attorneys who intended to accompany the couple to the first mediation session. Both attorneys had some knowledge of mediation; they had agreed to encourage mediation because both were concerned about their clients anger. The attorneys expected that complicated legal issues around inherited property were going to be crucial in this case. They were concerned that client anger would precipitate an extended legal battle which would quickly dissipate the limited funds this couple had. While it is not unusual for attorneys to refer clients for mediation ( in some jurisdictions an attempt at mediation is required by the Courts), it is more unusual for the attorneys to request that they accompany their clients.

In the first session, then, in addition to joining with the couple and telling them about mediation, we had to work to keep the session from being framed in an adversarial way by the attorneys. We had to help the couple feel safe enough to risk talking directly and to be able to present their own interests without feeling the need for their attorneys’ continued protection.

Michael arrived first, dressed in a three-piece suit. He was clearly a “Michael”, not a “Mike.” Fran arrived a short time later, a Fran not a Frances, dressed casually and on the verge of tears. Both attorneys, briefcases in hand, were ready to inform us of the issues they each felt were most important. We tried to keep the atmosphere informal. Rather than allowing the attorneys to start their cases, we chatted with them and the couple about traffic and mutual acquaintances. Michael and Fran said little, staring at us and not looking at each other.

We opened with the seminal question which parses whether someone belongs in divorce mediation or therapy. Turning to Michael and Fran we asked, “Do we understand that there has been a decision to divorce?” Both Michael and Fran looked a little surprised by the question. Michael answered with a curt, “yes”; Fran nodded in agreement. The issue is whether there has been a decision by at least one party to divorce. If so, that decision determines that there will be a divorce. The question is not how people feel about getting a divorce or whether they both want to get a divorce. Typically, it is not a mutual decision. One party is leaving, one left.

We went on to ask about the current living situations for each. Michael explained that he had moved out of the family house and into an apartment eight months before. He went on to state that Fran and two of their three children were still living in the house, that he was paying both his rent and the mortgage, and that this was becoming quite difficult. Michael seemed ready to expound further about the burdens he was experiencing. We knew that allowing each person to start arguing their positions would not only be unproductive but also would give each the impression that the sessions were not safe. We therefore gently broke in:

• “Michael, we do need to hear more about these issues, but before we get too deeply into all that we want to tell you a little about how we work. First, we want to be sure you both know that this is a voluntary process. While your attorneys thought this was worth a shot, it is entirely up to each of you whether we proceed. Either one of you may decide at any point that you don’t want to go on with this process. Here, you have both control and choice. We will make no decisions and have no power over you. No decision will come out of here unless each of you agrees to it.

• The process of ending a marriage, as you’ve indicated, Michael, is draining financially and emotionally. To end this marriage in a non-destructive way you each need to know you’ll be okay. To make sure that is the case we’ll have each of you fill out budget forms and will work with you to assure that you each have what you need. Our goal in working with you is to help the two of you reach an agreement which each of you feels is fair.

• One way to make sure you both feel the agreement is fair is for you to agree to full disclosure. Full disclosure means you will each provide full information and documentation of your assets and debts. It is important that each of you know that all the cards are on the table.

• We also want you to know this process is confidential. That means we will not discuss anything that happens in our sessions with anyone else. We will ask you to agree not to subpoena us if this process breaks down and your case is adjudicated. We think this is important so that you know that there is no benefit to trying to sway or to win us over to one side or the other to help if you do go to Court. Obviously, you each may discuss what happens here as you wish. There will be times that we encourage you to talk to people such as your attorneys to get information which may be helpful in making a decision.

Michael: So, we can talk to our attorneys? What if we don’t like something that is suggested here?

Mediator: Well, there may be suggestions about the mediation process which we might make and there will be proposals that most likely will be made by either you or Fran. You may like some; others will not be acceptable to you. You absolutely will not have to agree to something you don’t like and you certainly can talk to your attorney. If you do reach agreement, we will draft a memorandum on your decisions at the end of this process and we will ask each of you to review it with your attorneys before finalizing it.

As we addressed some of the fears both Michael and Fran were experiencing, we could see them relax a little. And as we acknowledged the attorneys’ competence and value as resources for their clients, they also sat back in their seats.

We asked each party if they had questions. While Michael had been assertive, Fran had been quiet. When we turned to her she became openly tearful, apologizing, and saying that this was difficult. However, she wanted to go ahead and give it a try. When Michael did not respond we asked him specifically if he also wanted to proceed. He agreed, noting that he didn’t have much choice.

We could not let that go by: our core belief as mediators is that clients do have choices.

Mediator: Michael, you say you don’t have a choice. There are no victims in mediation; no one has to do this. You do have choices, the first of which is how you wish to proceed. You can work out this divorce through settlement negotiations with attorneys, by way of decisions by the court, or you, yourself, can keep control of the process by mediating. Being in mediation is a choice and we want to be clear you are making that choice.

Michael seemed taken aback that his comment had been heard. He indicated that in fact he thought it was a good idea and as it might cut down on expenses, he would give it a try.

Michael asked how long this was going to take. We noted that each situation is different but generally the issues could be resolved in 6 to 8 sessions. We then queried whether Michael and Fran wanted their attorneys to attend future meetings. Both were comfortable meeting without their attorneys. We then put all this in writing and had the clients sign an agreement to mediate. We gave Michael and Fran asset and budget forms to be completed for the next meeting.

As we all were gathering up papers, however, Michael’s attorney interjected to say that he wanted to emphasize a financial issue regarding monies which Michael had inherited and funds he had received as a buy out by his company. Michael had accepted a lump sum from his company in lieu of continuing to work when the company was down-sized. The attorney declared tersely that some of those funds were unaccounted for and there was an issue of dissipation of assets which needed to be addressed.

Our first session thus ended on a note of tension, foreshadowing the conflicts to come.

THE PROCESS OF MEDIATION

Mediation is a process with identifiable stages. As couples move through stages, knowledge is gained that aids the couple in reaching decisions together about how to “get apart.” This is of primary importance because people often enter divorce settings with strongly-held positions about what they will or should get as they leave the marriage. It is a recurring problem throughout the mediation process. What the couple must learn is that the who-gets-what decisions are only made late in the game (stage 5).

Different mediators punctuate the process differently. However it is punctuated, all mediators need to have a clarity about the process and to trust that it works. They need to be aware constantly of the step by step stages and be clear where they are in that process. The model we have found helpful focuses on six stages.

1. Initiating the Process: First, mediators must join with the parties by establishing an emotional connection. Then, parties must buy into mediation and choose to work out their conflicts and issues through this process rather than the alternatives of either ignoring the issues or pursuing an adversarial solution.
2. Gathering information: Next, both hard and soft information is gathered concerning finances and needs and interests. Often, outside experts are used in this stage in a way that is quite different from the typically-isolated work of traditional individual or marital therapy.
3. Framing Issues: The mediators must help the parties identify the problems and issues. They frame the issues in language that is neutral, future-oriented and involves the needs and interests of both parties. The issues are not solved here!
4. Developing Options: Once a problem is identified, options are explored which might deal with that problem. People regularly come to mediation with their own preferred solution – an approach that often immediately locks parties in unresolvable argument. By encouraging the couple to slow down and consider options “outside the box,” the mediators can assist them in developing alternatives they may not have considered. This is the parties’ mediation: we encourage them to come up with their solutions rather than giving our solutions. The goal is to empower parties, rather than rescuing them.
5. Negotiation: Here, finally, parties negotiate and make decisions based on the options available to them.
6. Finalizing the Process: The decisions reached are finalized in a written Memorandum of Agreement.

Some mediators start with parenting, others with finances. But all full mediations (ie., mediations which are not simply custody mediations) must sooner or later deal with three major areas: asset division, support (maintenance), and parenting. We personally choose to begin with finances because we find it helpful to have a database to ground the discussion.

Mediation addresses very concrete issues: budgeting who will pay for the children’s clothes, whether Dad will take the children to church on Sunday morning when he has them, whether the present value of the pension is calculated based on its maximum value, or how the number of “overnights” will effect child support. Issues such as missing funds are often an area of concern. While the marriage counselor approaches each session with eyes on intimacy and communications skills, mediators must also have the child support guidelines and a calculator.

HE SAID, SHE SAID: GATHERING INFORMATION

We began the second session by asking how Michael and Fran had done with their homework, gathering their financial information and records. Michael quickly started in on what funds he felt were missing and demanded that they be repaid. He complained he was paying the majority of the household bills and bearing the heaviest financial burden. Fran, meanwhile, was more and more withdrawn, her eyes filling with tears.

In the language of mediation Michael was locked into his position; he not only had a concern but insisted on his solution. He was ahead of the process. Michael, pushing for a particular outcome, was really at Stage 5. We were increasingly aware of his anger and desire to push his position. This often occurs at the beginning of the process and we assured Michael that his concerns would be addressed but suggested that we had found it most helpful to first gather concrete information about their assets (Stage 2, Asset Identification and Valuation), prior to negotiating who gets them (Stage 5, Asset Distribution).

We then spent some time discussing their work and financial history:

Michael and Fran had married soon after Michael left the military service where he had seen action in Vietnam. Their marriage had lasted 27 years; their three children were all over 18. Michael had gone on to work for a large corporation while Fran maintained a secretarial position. She had left that job when she was pregnant with their first child. Both, they acknowledged, had agreed that Fran should not work outside of the home after their children were born. Their youngest child, now 20 and in college part-time, was living at home and not working. Their middle child also attended college while living at home. Their oldest was living on his own and working. Meanwhile, Fran had returned to work as a part-time teacher’s aide. Since their separation, she had been able to increase her hours to a full-time but low-paying position.

Michael had worked for the large corporation for 20 years, moving into a management position. Five years ago, the company down-sized and offered Michael a “buy out” package which he had accepted. He had planned to develop a consulting business but had not started the business immediately.

Fran revealed that Michael really felt he had been let go by his corporation after twenty years and was seriously depressed after his termination. She found him unavailable and near impossible to communicate with during this period.

Michael protested that his feelings were understandable. He went on to say his last remaining aunt had become terminally ill during this period, that he had cared for her and had continued as the executor of her estate.

As Michael spoke, Fran noted quietly that she had helped with his aunt. When she declined, the Aunt had moved in with the family and Fran had reduced her hours at work to help care for her.

As we listened to this history, we both became aware of and commented on the stress both Michael and Fran had experienced in recent years. Perhaps because she felt her feelings had been recognized, Fran began more actively to participate in the discussion. Thus, while we had moved to information gathering (Stage 2), we also continued the process of joining with them.

After gathering this narrative history we put up the financial data each had gathered on a flip board. The goal here was to take the separate fragments from each party and knit them into a consensual document. The rhythm of divorce mediation is a constant dialectic between separating people and bringing them together. One or the other movement always going on. In mediation where the parties are mainly focused on getting apart, the first task, paradoxically, is to bring them together in agreement about their assets. They must come to an agreement about what they consider marital property and what it is worth. Only then do they proceed to an orderly and fair division of assets. In the adversary system this is a contentious process that can involve lengthy and expensive, formal, coerced discovery (eg., depositions, interrogatories, subpoenas). In mediation the rubric is voluntary full disclosure. Though voluntary, however, it is not a process simply or primarily of trust: it is a process of disclosure that includes both documentation (e.g., tax returns) and a set of checks and balances (e.g., signed contracts for full disclosure including consequences for non-disclosure).

Fran, frightened at the time of separation about being able to pay household bills, volunteered that she had withdrawn money from a joint account and opened a savings account in her name. Michael and Fran had not been able to talk about this except with mutual recrimination. Now, Fran voluntarily shared critical information as well as supporting documentation of what had happened to the money.

As Fran shared the financial figures, Michael became increasingly angry. Michael felt that the sum Fran had taken was higher than she reported. Fran retorted that the couple had used much of the money Michael was referring to to pay household expenses while Michael was getting his consulting business started. She asked that he bring in the bank records to review. Michael balked. He feared, as do many people, that just to share the information threatened to give the other party an advantage.

This clearly was a hot issue. Fran pushed the issue further, asserting that Michael had inherited some family money and that he would also receive more funds when his aunt’s estate was settled. Michael did not respond to her statements. Prompted by the mediators, Michael agreed to bring in both a current bank statement and a history of transactions on that account.

This often occurs in mediation. Parties protest that the other has hidden assets. Mediation has a fundamentally different approach to the process of Gathering Information (Stage 2) than the adversary system. The adversary system does this by formal discovery and a series of consistently coercive measures – e.g., depositions, interrogatories, subpoenas – which carry a high transaction cost for the parties. Mediation addresses the same issue without coercion, but with a series of checks and balances that include a formal agreement for full disclosure, the use of financial Asset and Budget forms, voluntary documentation of assets, the clients’ use of attorneys, and a commitment to informed decision making.

We continued to gather information, now about their income. Fran’s income was low but had been steady. Michael’s income had varied as he established his consulting business but had risen steadily. The mediators raised the question of the value of the business. Michael protested that he was the primary asset of the business; it was his knowledge which made it work. The mediators asked that he bring in copies of the tax returns for the last three years. Michael reluctantly agreed.

By the end of our second session the mediators, and more importantly, the parties had a good picture of their finances. Each had assignments to do for the next session. Assigning homework is a major role for the mediator. People come to us saying they want a divorce, but are bogged down and stuck. Researcher Ken Kressel says our job as mediators is to help clients orchestrate their divorce (Kenneth Kressel, THE PROCESS OF DIVORCE (New York: Basic Books, Inc., Publishers, 1985)). We help them move forward.

Michael and Fran, for example, agreed to talk to a real estate agent to find out what would need to be done to the family house to prepare it for sale and what its fair market value was. They were not committing to selling the house, but gathering information so they could later consider options (Stage 4)and make an informed decision about how they wished to proceed. The assumption in divorce mediation is that the parties got into their marriage without lawyers making that decision for them. Similarly, if provided with proper information so they can make informed decisions, they can work out the end of this partnership themselves.

In addition, we asked both Michael and Fran to complete individual budget forms for their future as they separated. Much of divorce mediation is reassurance about fears: the budgeting task is structured to help reassure clients who are understandably and predictably anxious about the future. Mediation offers clients the opportunity to plan concretely for the future beyond the divorce. It can reassure them that they will be able to cope financially.

The identification and valuation of Assets is a consensual task, requiring agreement on what they have and what it is worth in order to divide them up and to separate. Divorce mediation consists of an alternating rhythm of bringing people together and separating them. There is much work couples need to do together in order to separate non-destructively. The Budgeting process has a different dynamic. It is not a consensual task. The marriage is ending and the parties are planning for what each will need individually for the future. Here, the task is to help them gain separation/individuation as each concentrates on his or her own budgetary needs and lets go of their long-ingrained desire to criticize the other’s life-style and values.

NEGOTIATION: FROM SHORTFALL TO DIVISION OF ASSETS

At the beginning of our third session we followed up on the assignments Michael and Fran had agreed to. Fran had brought the requested bank statements and her budget; Michael had brought only part of his budget and had not brought the bank statements that he had agreed to bring. The dynamics of our mediation increasingly centered on the issue of voluntary full disclosure. At this point Fran interrupted and said nervously that she had something she needed to discuss. She had contacted one bank for current balances on some of the accounts and had been informed that one account which was jointly titled but which Michael had taken over had a much larger balance than Michael had reported. This statement led to a moment of tense silence. Michael finally commented that he would look into the discrepancy.

As we talked together after the session, we realized that each of us felt more concerned about Michael’s possibly hiding assets or attempting to avoid full disclosure. We each also felt the impulse to warn Michael of the consequences of nondisclosure. We held our counsel, however, recognizing that though this issue needed to be addressed, doing so here would likely break an already fragile relation.

Since Michael had not completed his budget, we returned to working on assets. Michael had a coin and stamp collection started by his father that he had kept up. It was actually now quite valuable. Fran said that she felt that it was Michael’s, regardless of its monetary value. Michael quickly agreed.

As Michael and Fran talked, we increasingly confronted the mediator’s key dilemma. We are committed to remain neutral and to allow the couple to reach their own agreement, regardless of whether we believe it meets our standards of fairness. Our role is not to attempt to control the content of the negotiations; our commitment is to the integrity of the process. We increasingly felt the strain of maintaining that commitment as Michael seemed to stonewall and Fran seemed repeatedly to be getting the short end of the stick. Michael blamed Fran for “dissipating assets” that she reported were easily accounted for. While complaining that he had less money than he should, it appeared that Michael might actually have more money than he was reporting. He also was withholding records which would clarify these issues.

This, of course, is the major critique that has been levied at divorce mediation by both the legal profession and sectors of the women’s movement. It appears to them that mediation does not have adequate safeguards and women are often disadvantaged in the negotiations. They need protection. They need an advocate. Mediators abjure the role of advocate. Our commitment is to self-determination and to the empowerment of both parties to negotiate effectively with one another. As Gary Friedman has put it, “I won’t do it for you, but I will help you do it, if you have something you wish to say.” If mediators succeed in the process of empowerment, they believe they can get out of the way and allow the parties to negotiate their own interests.

This is the existential encounter about mediation truly being a choice – not only for parties involved in the divorce, but also for professionals. The question becomes: do people need rescue or empowerment?

Not only is this commitment to empowerment in mediation often an offense to the legal community, it is a deeply divisive issue within the mediation field itself. The field has for two decades organized itself around needs-and-interests-based negotiation, best articulated by Ury and Fisher’s classic work, GETTING TO YES. Here, the focus is on outcome.

That theory has been challenged by the work of Baruch Bush and Joseph Folger, THE PROMISE OF MEDIATION: RESPONDING TO CONFLICT THROUGH EMPOWERMENT AND RECOGNITION. Bush and Folger have argued that mediation’s fundamental commitment is to self-determination which requires the mediator to focus not on outcome but on process and the empowerment of the parties. When the mediator is invested in outcome (ie., getting an agreement) inevitably the mediator is no longer fully present. S/he begins to get involved in the substantive agreement – ie., is it fair? S/he begins to push in the present while focusing elsewhere – on the future.

For Bush and Folger the challenge in mediation is truly one of trust. Can the mediator truly trust that the process will work, even with difficult clients? When Fran stated that the stamp collection was Michael’s we found ourselves biting our tongues, increasingly nervous about her ability to assert herself. The temptation for us to abandon the process and try to advocate – at least a little bit – for Fran and her future needs was increasingly hard to resist.

However, Fran’s offer to give Michael the collection seemed to have helped him relax. Michael stated that he thought most of their property could be readily divided if they met outside the mediation session. They agreed to try this and to get comparables on items such as the boat and the piano.

At our fourth meeting both Michael and Fran reported that they had met and had successfully agreed on most of the property. We asked about the bank statement which Michael had agreed to bring in. He told us that he had had time only to finish his budget. We found ourselves increasingly frustrated with what clinicians would identify as Michael’s passive-aggressive style. However, we attempted to maintain our bond with Michael by reiterating one of his goals, which was to reach an agreement as quickly as possible in order to reduce costs; we noted sympathetically that the more work he accomplished between sessions the faster the process would go.

He again agreed to bring in a copy of the statement and we turned to the process of examining the prospective budgets. Mediators have to struggle to remain neutral here. Parties often inflate figures, trying to position themselves more advantageously for an anticipated support discussion. Again, the process is very different from the adversary system. There, budgets are often used as a position for requests to increase or reduce support. In mediation we truly are using the budget for purposes of planning for the future, to allay clients’ fears. Until clients can deal effectively TOGETHER with their shortfall and eliminate it, mediation recognizes that there will never be anything but a fight over support. Although a party may need support, support is an internal transfer of money. If there are not enough resources between the parties in total, then it is premature to negotiate support. Again, clients must come together in order to separate non-destructively.

It quickly became clear that Fran expected to shoulder a great deal of the expenses for their two children, whom she assumed were going to continue to live with her. She included costs of their car and health insurance, and tuition in her budget.

Michael, in contrast, had projected his ideal budget. He budgeted for vacations of the sort he had never taken before, for the expensive hobbies not yet undertaken, etc. His projected house payments were larger than the mortgage on the current family home! Michael was quick to justify all this as needs.

At the end of the process the mediators added up the total budget of each party and then put their income next to their projected needs. The difference was dramatic, as it often is. At this stage each couple often experiences a surge of anxiety and despair. It seems impossible to them that they will be able to find a way to manage this financial short-fall. As Michael and Fran looked at the numbers, Fran announced that she would have to find a way to lower her expenses; Michael sat silently. We asked that each of them take time before the next session to look at ways not only to decrease their expenses but also to increase their income.

Before the next meeting, the mediators discussed their mutual concerns. Fran had spoken during one meeting about how her role in the family had been that of peacemaker and caretaker of people’s emotional needs. It was difficult for her to disagree with Michael. We were aware of her having strong reactions to Michael’s budget, yet she had not challenged his figures. Michael also seemed increasingly tense. We decided to caucus, that is, to meet separately with each party in the next session.

Caucus is one of the most controversial technique in mediation. Many mediators, especially in community mediation settings, use it routinely. After opening statements mediators go directly into caucus. Others, who appeal to the family-systems roots of mediation, object to its use at all. Going to caucus, for them, is to open oneself to inappropriate alliances and triangulation. They view their client as the couple. Anything that needs to be said, can be said in joint session. Acknowledging this split in the field, we have ourselves found caucus to be an invaluable tool among other things in clarifying interests, protecting client vulnerability, saving face, and empowering parties.

Thus, in the fifth session we caucused and met with Michael first, as he seemed most resistant to the process of mediation. We asked his reactions thus far. He quickly launched into an tirade about the expenses he had to pay towards his children, feeling that they should be sharing more of those expenses since they were over eighteen. He also spoke again of the amount he had to pay for the mortgage and rent. Michael went on to note that he felt the children could start working part-time jobs as one way to increase the family income. He had not had time, he reported, to try to address his budget and the deficit between his projected expenses and his income. His income was variable, since he was self-employed. He then complained about how long and costly this process was. The mediators tried to acknowledge his concerns; we noted that much of the control over how long this process took was actually in the parties’ hands. The more work, such as gathering financial information, they were able to do between meetings the less time the mediation was likely to take.

When we met alone with Fran, she quickly became tearful. She spoke in a rush of her outrage over Michael’s budget and her fears that she would be left destitute. The mediators acknowledged her fears and her role in the family of always working to keep yothers happy and smooth over problems. We wondered out loud if this was a situation that could simply be brushed under the rug. Might there be some benefit to her in addressing these issues, both in terms of reaching an agreement she would be comfortable with and in terms of learning a new way to approach problems as she prepared to move on alone? Fran sat silently for a moment and then laughed, telling us that we sounded just like her therapist.

Indeed, there are moments that mediation can be therapeutic, as it gives individuals the opportunity to explore new possibilities. In this regard, much of mediation is psycho-educational: teaching people how to negotiate effectively. The agreement is most likely to be sound and lasting if each individual has participated fully in reaching the decisions made, not only by sharing information but also by sharing in the problem-solving.

We returned to our joint meeting and their budgets. Michael began to speak about his feeling that the children should share more of the expenses. Fran, taking a deep breath, said that she wanted to review both projected budgets. She had, she said, found some ways to cut her budget and she wondered if Michael had done the same. Michael began to argue. Fran quickly interrupted. She stated firmly that she felt many of the figures given by Michael were inflated and could be cut with a little effort. She also went on to note that she expected Michael was concerned about her getting “his” money and she was willing to negotiate that. She said it would be impossible to negotiate if they did not start out with more realistic figures. Michael sat in silence for a moment and then asked what Fran had in mind. Fran went on to suggest ways she could cut her expenses and then turned to his budget with a similar approach. Michael hesitated, then said he could not commit to her proposals until they had reached some decision about the assets. It became clear that this continued to be a prime concern for Michael, so we turned to that area.

As the first step in that process was to review the list of assets, this was a natural moment to follow up with Michael about the bank statement he had agreed to bring. Michael somewhat hesitantly offered the statement, saying tersely that the balance was larger than he thought, and he was not sure why. He seemed hesitant to discuss it further, but Fran did not accept his non-explanation. She began to question him more actively, finally asking if the deposit was connected with his aunt’s estate. Michael said he thought that was a possible explanation adding that, if so, it was his inheritance, he thought it should not be included in our discussions, and he believed that the law would support him.

Fran said she wasn’t sure and added that she had actively helped care for his aunt. Fran felt that what she left to Michael was intended to go to both of them. As they squared off we encouraged them to talk with their attorneys about how the courts, were they to make a decision about this matter, would handle the grey area of inheritance. This would enable Fran and Michael to make an informed decision after becoming aware of the alternatives.

We then asked Michael about his concern regarding the “missing funds.” It turned out he had also brought those statements and we reviewed them together. Fran pointed out that each of the withdrawals had occurred before they had separated. She reminded him of how the money had been used – for household expenses and for children’s tuition. She acknowledged the withdrawal she had made at the time of the separation and she provided Michael with the current statement for the savings account she had opened. Most of the money she had withdrawn from their joint account remained. Michael acknowledged Fran’s statements! Simply by reviewing the records, the issue of “dissipated funds” which the attorneys claimed was the heart of the case had disappeared.

Soon after this session, Michael called to cancel the next session saying that he was too busy to meet then and would have to call later to reschedule. He again expressed vague dissatisfaction with the progress of mediation and, as the mediator acknowledged his concerns, expressed more open frustration. We had not been listening to him nor sufficiently understanding of his concerns, he offered. The mediator spent far more time than he normally would on the phone with a client in an effort to try to find some way to connect with Michael. The effort was thoroughly unacknowledged by Michael.

DEVELOPING AN AGREEMENT

As our next meeting opened, Michael said that he had thought of some ways to decrease his projected expenses. We reviewed those changes with him and then moved to assets. We asked if they had spoken to their attorneys. Fran reported that she had gotten some information suggesting that those assets would be considered marital property. Michael indicated that he thought she was wrong but had not spoken to his attorney. Nevertheless, we thought we would try working through the assets to see if there was ground that they both agreed on. Indeed there was. They quickly made decisions to cash in their whole life insurance policies. They also readily agreed to allow each of them to keep the full amount in the checking accounts each had established after their separation, to add up the amount of money that was in their various joint savings and checking accounts at the time of their separation and to divide the amount evenly. Michael also indicated that he understood Fran was entitled to 50% of his pension and agreed to that plan. Money that he had received and invested during the buy-out Michael also proposed should be split equally as he believed it would be considered a marital asset.

We then addressed spousal support, the most polarizing issue in divorce mediation. Fran stated that she felt she was going to need support for awhile. To increase her income she realized she needed to further her education. She looked tearful and anxious as she explained this to a stony Michael. Asked his thoughts, Michael said he had none. It was Fran’s turn to become angry. She stated that she could not believe that he had never thought about spousal support in all the time they had been separated and in mediation. Hooray Fran!

In our next session, Fran, having spoken to her attorney, said she had some ideas about how much support she might get. Her attorney had also informed her that the laws about inheritance were complicated but that she might well be entitled to half the funds in dispute. Michael became more tense. Fran said she had a proposal. Given an even split of the marital assets, she proposed a decreasing schedule of spousal support which would give her increased short–term aid to finish her schooling. Michael did not respond.

We asked if he had any thoughts about a proposal. He indicated that he did not; he only knew that he could not continue paying what he was paying now. We took that as a starting point to explore Fran’s proposal in more detail, breaking down the numbers so that both could see how they added up. Michael again raised his suggestion that perhaps the children should begin to assume responsibility for some of their own expenses. While Fran was hesitant at first, she responded to his suggestion and they proceeded to discuss options for the expenses for the children in a more cooperative spirit. Both seemed relieved as the size of the shortfall between their income and budgets decreased. The session ended on this positive note. We began to feel hopeful.

Before our next meeting, we received a call from Michael’s attorney who expressed concern about whether we were making progress. Therapy as traditionally practiced has frequently been a very private activity. Mediation, in contrast, is inextricably involved with other professionals. Mediators must work with other cognate professionals including accountants, actuaries and attorneys. However, this collaboration can be a two-edged sword, as other professionals at times apply pressure on the mediation. Mediators, subject to peer pressure from colleagues, are not at liberty to discuss the content of the mediation sessions. Mediators are not unlike therapists, unable to talk to third parties about the case when family members call and complain about how long this is taking. But mediators must be able to work with attorneys. We encouraged him to speak with his client and help the client develop some options for support.

By our eighth meeting, both Michael and Fran had completed all their assigned tasks. The figures provided by the real estate agents regarding the market value of their house were quite close to each other and gave Fran and Michael solid numbers to work with. We again worked through the numbers and found that the difference between their two proposals was lessening. We encouraged them to brainstorm options, including alternate ways to finance Fran’s education and to handle the expenses involving the children. When we can actually get clients to this point, we can largely get out of the way. Clients have largely stopped blaming each other as the problem, and begun to problem-solve together.

Michael and Fran were clearly at an impasse on many parenting issues. Now, however, they agreed that their children could begin to assume more responsibility. They developed a plan which brought their numbers closer to each other. Each time we recalculated, they both looked somewhat relieved. It seemed to make them more eager to find a way to bridge the gap and come to a resolution.

At this point we returned to the question of support. Michael clearly was resistant to paying support of any amount. He was more open to increasing Fran’s share of the assets. He still had a question about how much of his aunt’s estate he would consider marital. We reminded him that, even if it was not considered marital, the courts could count it as part of his income in determining support. Michael paused and offered another option, to give Fran more of the proceeds from the sale of the aunt’s house. Fran brightened. We gave them a draft of their agreement and gave them homework to explore options for financing Fran’s education.

To summarize our progress to date we joined with Fran and Michael (stage 1) and facilitated their gathering information (stage 2). We developed a shared definition of the problem (Stage 3). The parties began to develop options (stage 4). At our next meeting, Fran reported that a portion of her tuition could be covered by a grant and that she would be eligible to obtain a student loan. Michael continued his concern about committing himself to pay support if his income dropped. Fran countered that he might do significantly better in his business and she would be left struggling. We suggested that they could deal with these uncertainties with a contingency agreement, simply adding those conditions to the agreement. We went on to explain that they could modify support if either party’s income changed more than a certain percentage in either direction. Both appeared pleased that this was fair and responsive to possible changes in their circumstances.

While therapy is present-oriented, mediation develops agreements that bind the future in spite of major unknowns and uncertainties. Here again, the mediators interrupt interminable arguments about unknowns with contingency agreements that protect and reassure both parties. A large part of divorce mediation involves reassurances of parties’ fears. What was so difficult for us in dealing with Michael was how defended he was about ever acknowledging the fear behind his anger.

By the end of that meeting we had a fairly detailed agreement worked out. Again, we agreed to send each a draft to review both alone and with their attorneys. We scheduled what we thought might well be our final meeting.

CONCLUSION

Whenever possible, we have found it helpful to include the children in a final meeting so that they have the opportunity to hear from their parents and us that their parents have committed themselves to be there for the children in spite of and after the divorce. The children also have an opportunity to ask questions about the arrangements. With Michael and Fran their children had clearly been affected emotionally by all the events in the family, even though they were not minors. We offered the opportunity to have a family session to Michael and Fran, but after a brief hesitation, they declined. We don’t force it on couples. For clients who do meet together with their whole family it is often a ritual time of closure on the marriage.

We scheduled our last meeting for a few weeks away. We sent both Michael and Fran a draft of the Memorandum of Agreement; they were to review it with their attorneys. Shortly before what was to be our final meeting, however, Michael called and canceled the session, saying he was busy and would reschedule “later.” As weeks went by, we attempted to contact him without a response. We began to believe that Michael was making himself unavailable, effectively ending the mediation.

After the weeks of work we had put into this mediation, we felt simultaneously frustrated and concerned that perhaps we had made an error in the process. On reflection, we recognized that as Fran became stronger in the mediation Michael pulled back. There is debate in the field as to whether mediators should advocate for “fair” agreements or make decisions about the substance of agreements. Here, though tempted, we had resisted and trusted the process. We felt good that we had not rescued Fran but helped empower her. We also felt good that we had resisted the temptation to control Michael and had focused instead on supporting them both.

It seemed, however, that Michael could not accept making concessions to his wife. In the face of the requirement for full disclosure, Michael dropped out. By empowering each party, a system of checks and balances is operative in mediation. Fran found a voice and was increasingly able to assert her concerns and wishes. Michael had been unwilling/unable to voice his fears and pain; however unsatisfying, he felt safer holding onto his perception of himself as the victim in the marriage and the mediation.

As we discussed our work with Fran and Michael, we had many mixed feelings. Fran’s growing sense of self-confidence was rewarding to see. She had grown individually. However, we were frustrated by our inability to truly connect with Michael and to create an atmosphere in which he could give fairly. Our inability successfully to join with Michael, the very first task of mediation, signaled what we feared was the fatal flaw of this mediation.

We had begun to accept this state of affairs and were drafting a letter to formally end the mediation, when we received a phone call from Michael, asking to schedule the final meeting. We were surprised and cautious, but set a date. Shortly before we met with Fran and Michael, we received a phone call from Michael’s attorney, who informed us of events in the intervening weeks. Michael had been prepared to go to Court, believing the Court would declare him right. His attorney, however, in looking over the draft of the Memorandum of Agreement, had been quite candid with Michael about the possible outcome if he did go to Court. He pointed out that he Michael might well have to pay substantial alimony and court costs. Apparently, this conversation prompted Michael to reconsider the mediation.

Michael grimly entered the final meeting. After welcoming them both back, we asked them to update us, including telling us what response they had each gotten from their attorneys to the Memorandum. Fran spoke first, noting that her attorney told her it was possible that she could get more alimony if they went to Court. However, when Fran sat down and calculated the potential financial and emotional costs of such a choice, she felt that was not the option she wanted to pursue. She turned to Michael and said:

• Michael, I know you’re angry about giving me anything at all. For years, I avoided making you angry in any way that I could, and it’s very hard for me to know how angry you are now at me. But that’s not the reason I’m not going to fight with you in Court. I want us to accept this agreement because, for all the problems we’ve had, we deserve to end this with as much respect as we can. I mean, respect for ourselves and our kids, even if you don’t respect me.

• I think this is fair and I’ll be okay with the way we’ve worked it out. I also know you’ll be okay, and believe it or not, that matters to me. I hope you can accept this too.

Michael was silent. Then he said his attorney had told him he could fight it out in Court but that he decided he would spare Fran that stress.

We were silent for a moment and we later realized that, as mediators, we were stunned. Michael had found a way to accept the agreement while saving face and seeing himself as the stronger one once again. While this might not have been a satisfying outcome if we were conducting therapy, it was a very satisfying way to bring the mediation to a close. Fran and Michael signed the Memorandum. Fran thanked us and left somewhat tearful but looking relieved. Michael shook our hands and left without a word.

We would have wished for more connection and a greater sense of closure. Yet ultimately the process of mediation worked to the degree we resisted the temptation to rescue someone who seemed so in need of our help. Mediation may indeed be transformative, but it often is a small “t”. Clarity and understanding frequently enable people to make choices where they thought they had none. Fran was able to care for herself and yet still provide an opening for Michael, allowing him to give something. Because we resisted the temptation to advocate, there was an opportunity for empowerment. But it is an opportunity only. We can only create the space: people still have the choice whether to move into it. Here one availed herself of that choice. One resisted choosing. In the end, we were brought back to our beginning place, that this is truly about not our wishes, but their choices.