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USA Today Article: Mediating the End of Divorce: A Kinder, Gentler Divorce?


Special for USA TODAY By Judith Valente

After 24 years of marriage, Charles and Lucy Rey decided to call it quits.

Lucy complained that Charles, president of a Chicago Research firm, was a workaholic. Charles said Lucy, a social worker, left him for another man. Both agreed, however, that they wanted an amicable parting for the sake of their two children. Instead of battling it out in court, they turned to a divorce mediator for help.

For five months, the Reys sparred about the value of Charles’s company and whether Lucy would get a stake in it. They fought about their $200,000 house in Naperville, Ill.; nearly $215,000 in stocks, bonds and retirement funds; the Saab and the Audi; and even who would keep the dog.

Ultimately, they reached an agreement that both still say was fair.

The Reys, who divorced in 1988, were at the forefront of a growing trend. Today, large numbers of divorcing couples are shunning courtroom battles and working with a mediator. In mediation, the couple, not a judge, decides who gets the kids, the house, the cars and other marital assets. The mediator serves as coach, counselor, consensus builder and occasional referee.

“We smooth the waters so couples can talk with each other and express their needs in a respectful context, ” says Carls Schneider, who mediated the Reys’ divorce and now practics in Silver Spring, Md., near Washington, D.C.

Mediation isn’t same as arbitration, in which a hearing officer listens to both sides, then hands down a decision. In mediation, there are no cross-examinations, no depositions, no stenographers.

Divorce mediation can take anywhere from a few weeks to six months, depending on the issues to resolve. The costs range from a few hundred dollars to several thousand dollars, says Ericka Gray, executive director of the Academy of Family Mediators. Ina contested divorce, lawyers’ fees easily can run upward of $10,0000, and the proceedings can drag on for years in court.

Some couples see more than just financial benefits. Actor Clarence Gilyard of TV’s Walker: Texas Ranger says he recieved emotional support from Forrest Mosten, a Los Angeles mediator and family law specialist, during his 1994 divorce from actress-writer Catherine Gilyard.

“I could tell him everything I felt,” GIlyard says of Mosten.

    Some couples have discovered mediation can be a less expensive, less explosive approach to divorce than a judge. The mediator serves as coach, counselor, consensus builder and occasional referee. And the couple, not a judge, makes the decisions.

No official statistics exist on how many divorces go to mediation each year. But the number of divorce mediators has ballooned to about 3,600 from just 100, says the Academy of Family Mediators in Boston. Since 1994, more than 5,000 people have enrolled in an American Bar Association mediator training program.

In choosing a mediator, it’s a case of “couples beware,” because no official licensing agency oversees the field. “Anyone can hang out a shingle, ” Gray says. However, many mediators belong to the Academy of Family Mediators, which sets standards of practice for its members. The academy also serves as a watchdog and will investigate complaints against members and initiate a grievance proceeding, if necessary. A large number of mediators are also lawyers or licensed counselors, Gray says.

But mediation doesn’t always work. Michael Weiser, 34, a graphic artist from Chicago, though he and his wife of two yeas would be ideal candidates for mediation. The Weisers had no children, didn’t own a home and had few other assets. But at their first session, the couple argued about who would get the china, a wedding gift. “She started complaining this wasn’t working and got up and walked out,” he says. They never went back. Weiser ended up with a court-ordered settlement requiring him to hand over not only the china but six months’ rent on his ex-wife’s new apartment and substantial lawyer’s fees.

Still, several studies have shown that 60% o 65% of couples who mediate are able to hammer out lasting agreements.

Mediation is less expensive than a court battle, but it isn’t cheap. Fees generally range from $90 to $200 an hour. Mosten, a Los Angeles mediator who is also a lawyer, charges $425 an hour; Schneider, a clinical psychologist charges $150.

And lawyers are still a part of the process, thought a small one. They mainly review the final settlement and represent each side when the divorce decree is finalized in court. And couples who mediate sometimes choose to consult lawyers. This raises the cost significantly, especially, says Mosten, if either partner uses the process “to punish each other, to extract revenge.”

But some women’s groups remain skeptical of mediation. “It works when couples have a reasonably equivalent balance of power in the relationship,” said Lynn Hecht Schafran, a lawyer at the National Organization for Women in New York.

Schafran says battered wives are at a major disadvantage. “It’s absurd to think a woman who has endured domestic violence is going to speak openly and make demands in a mediation, “she says.

The Reys’ settlement has held firm for nine years. Charles, 63, remarried in 1989 and lives in Deerfield, Ill. His company went out of business in 1994 due to cutbacks in NASA’s budget. He now operates his own research consulting lab.

    From bitter antagonists to agreement in 20 hours.

Lucy remarried in 1993 and resettled in Las Vegas, where she is a family therapist. Of her mediation, she now says, “I would do it again, but I would have two mediators, one male and one female.”

Says Charles, “If everybody walks away just a little unhappy, it’s probably been a fair mediation.”

Couples who mediate must at least tolerate being in the same room. And they must be willing to do the type of financial legwork a lawyer or accountant would do for a fee.

Charles and Lucy Rey learned that quickly. Their mediation took 20 hours over 11 sessions. The sessions were videotaped for training purposes. And the tapes provide a good look at this normally confidential process, showing its strengths and pitfalls.

A quiet man with long, silverish hair, Charles, now 63, had taught physics at several Midwestern universities. After patenting a procedure to elevate small objects with sound waves, he and a partner formed Intersonics in 1981, which did research almost exclusively for NASA.

Lucy, 58, put aside a teaching career to raise their children. During their divorce, she had finished a graduate degree in social work and hoped to start a counseling practice.

At one of their first mediation sessions, Lucy demanded Charles give her half his ownership stake in his company.

Lucy claimed Intersonics was a “common marital asset,” citing an Illinois law which gives spouses a right to half of any asset acquired during the marriage. Charles then threatened to close the company.

He told her, “You were never very supportive of my effort to try to build the company up. I’m the one who was in the office Saturdays and Sundays, typing up proposals.”

“I made it possible for you to pursue your career by keeping our home, Charlie,” Lucy countered. “I took time away from my goals. I raised our children. There’s a value in that.”

When Charles refused to give her an equity stake, Lucy demanded half of what Charles’s Intersonics stock was then worth in cash — $250,000 to $750,0000 , she said. Charles argued it was worth only about $142,000.

Up to this point, mediator Carl Schneider had spent most of his time helping them determine their needs and desires. Now he stepped in. “I don’t think you have to be at each other’s throats,” said Schneider, who has a doctorate in clinical psychology. “You both need some information about the business.”

The mediator listed some options: The Reys could each hire auditors or have their lawyers do it — both expensive propositions. Or, he said, Charles could agree to share information Lucy felt she needed.

Schneider also asked the Reys to bring to their next meeting a list of all their financial assets.

And he gave them a form to help them calculate their monthly expenses, including the $30 Lucy spent on cosmetics; Charles’ $35 dry cleaning bill and $25 haircuts; and the $200 annual fee for the dog’s shots.

At the time fot he divorce, Charles’s gross income was $83,808, Lucy’s was $22,500.

Lucy spent $500 more monthly than she earned. Charles’ monthly income fell $900 short of his expenses.

Schneider told the Reys they could “be prepared to operate on a deficit in years to come” or else find ways to cut costs and increase their incomes.

    The Reys finally reached an agreement.

By the next session, Lucy had consulted a lawyer and come armed with his demand for financial information about Charles’ business.

When Lucy said she was prepared to subpoena the data, Schneider interrupted.

“Those kind of threats aren’t helpful, Lucy,” he said. “We work here on the premise of voluntary disclosure.”

Lucy had also come to the session with a proposal for a settlement — the first of many. In it, she asked for a one-time payment of $236,000. The payment would include about $170,000 in cash; $59,000 in stocks and bonds; and the transfer of one of Charles’ retirement savings accounts.

Charles flatly refused.

Schneider looked for ways the couple might compromise. He noted one way to raise cash for both of them was to sell their house and split the proceeds. The Reys seemed responsive, but fought over who would pay for needed home repairs.

“So much needs to be done on the house because you neglected it for so long, Charlie,” Lucy began shouting.

“Can I suggest you two count from one to 10 real quick,” Schneider intervened.

A short time later, Lucy dropped a bombshell of sorts. She asked if it were possible to bring in a second mediator — a woman.

“There were times when I felt like Carl and Charlie were on the same wavelength, and I was odd woman out,” Lucy said later.

Schneider didn’t object. But when the Reys learned it would double the cost of their mediation, they dropped the idea.

Charles now said he was willing to pay Lucy $200,000 for her half of his shares in Intersonics. But such a payment would leave Charlie with only $19,000 cash on hand, and he wanted to make the payments over five years. Lucy refused.

Fearing a collapse in the negotiations, Schneider sought separate meetings with Lucy and Charles.

Away from his wife, Charles spoke despairingly of his company’s prospects. He said Intersonics risked losing two key NASA contracts because of government cutbacks.

Schneider asked both to focus on what they could agree on and shelve temporarily the hot-button issues.

Bit by bit, the couple made concessions. Lucy agreed to a five-year payment schedule. After reviewing documents from Intersonics’ outside counsel and auditors, she softened her estimation of its worth. The couple also agreed to sell their house and split the proceeds. The Reys finally reached an agreement that provided Lucy $206,000. It included the value of stocks, bonds, half the proceeds from the sale of the house and $36,800 cash. Charles kept $169,000 and the dog.

“Crack out the champagne!” Schneider crowed.

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