Taking The High Road

The man and woman who came to me for a divorce mediation were both in their 50’s, attractive and successful. She was a reporter for a prestigious newspaper and he a prominent local TV newscaster. They had been together for 20 years and had two children, ages 10 and 13. His income and future income potential was very high and hers above average and secure. In addition, they expected a substantial inheritance in the future. Their lifestyle was very comfortable, if not lavish, of which they were both aware.

At the consultation and first session, they appeared to be a mediation couple from heaven. They were calm, pleasant, articulate and arrived with clear (and reasonable) ideas of what they wanted to do about their children, their finances and their divorce. They were not obviously angry at each other or filled with resentment or hatred, although the marriage was breaking up because the wife had “fallen in love with” someone else and wanted to take the children with her into a new home. They spoke of their desire to make the divorce as simple and collaborative as possible. He spoke, more than once, of “taking the high road”, even though the separation was not what he would have chosen.

I knew that initial sessions are sometimes like that. Years ago a more experienced colleague told me that it was often at the third session that she started to see the nastiness and pain that usually are part of matrimonial mediations. That turned out to be true, as a generality. But at the third session of this mediation (after long intervals in between, consultations with their trusts and estate attorney and some e-mailing discussions back and forth) we were finished and I was ready to draft a memorandum of understanding.

After I submitted the draft to them there were some revisions, but there was no second-guessing of what they had decided. The changes were made to fine tune tone, correct a detail or two and add a protective provision suggested by the trusts attorney. Within 10 days of receiving the draft they had an MOU .

How was this couple able to be so constructive, goal-oriented and, well, pleasant to work with? I have been puzzling over that and have some conclusions. Unfortunately they do not include any suggestions on how to import the tone of this mediation into others. Nor can I claim substantial credit for it–it mostly came from the two people who were arranging for their separation.

When the marriage began to unravel, the two entered couples therapy, which they were continuing on a very occasional basis when we began mediating. They were still living in their marital co-op, but separately, for over a year, while her future new home was being extensively renovated. The two of them came to and left the mediation sessions together.

When I mentioned at the end of the final session how unusually free of acrimony the process had been, the husband attributed it to the fact that they “had enough money”. But that’s not it, or all of it, as the most notoriously bitter divorce fights are among the rich. Who else can afford the legal fees?

On reflection, I think that several factors contributed to the tone and productiveness of this mediation.

• To begin with the obvious, perhaps the couples counseling had helped them get past the bitterness that is endemic to most break-ups. It often seems to do no more than help couples decide to separate but this experience may have been a more profound one.

  
  

• The wife and husband were both confident, effectual people accustomed to accomplishing what they set out to do. And they were totally clear about two things—they wanted the break-up to be as easy as possible for the family and they expected to both remain active, sharing partners in the raising of their children. There was no discussion at all, as there usually is, of who the kids would spend which holidays with—they would work it out as the holidays approached.

  
  

• They had a striking amount of trust in each other’s future behavior and integrity, even as we discussed the possibility of future remarriages, job changes or geographic moves. I don’t know why, especially since the marriage ultimately foundered because one of them violated the compact by getting involved with another person.

  
  

• The couple came to mediation with a clear, if sketchy, idea of how it should wind up. They knew that they wanted to co-parent but that the children would have their primary residence with the mother (the father worked at night, so this was the only feasible option in their eyes). They knew that the husband would assume all financial responsibility for the children until they were adults (he was adamant that he did not want the new man to pay for any of the costs of their upbringing). And the wife did not want and would not seek either spousal maintenance or any share of his future pension.

  
  

• They had an atypical division of assets scheme in mind, based on assumptions made during their marriage and incorporating a sharing of the wife’s expected inheritance. Much of the mediation sessions focused on how to best bring this about, but the central concept was in place before they walked in my door.

  
  

• They communicated well, at least about concrete (non-emotional or intimate) issues. And they were each able to live with uncertainty while the other one took time to consider a specific proposal or mentally sort out some financial issues.

When the mediation was concluded, I kept thinking about the experience and just how unusual it was. It was a great mediation in terms of efficiency and result. The couple structured an idiosyncratic and very appropriate agreement, one which incorporated exactly what they wanted/needed to continue parenting together. If glitches should arise, they are in a good place to work them out together.

My sense is that they worked through a final separation with more ease and decency than many couples bring to negotiating a choice of school for a child or a vacation. Still, it saddened me that a couple with such good will toward each other and such an excellent way of communicating isn’t staying married.

                       

Nancy Kramer

  Nancy Kramer is a mediator, attorney and arbitrator who mediates on a variety of matters including employment, commercial, family, personal injury and co-op/condo. She serves on numerous mediation panels, including those of the American Arbitration Association (AAA), US Postal Service, US Federal Occupational Safety (FOH) and New Jersey Superior Courts, as… MORE >