Tom Brady and Gisele Bündchen: Consider Mediation!

So, if the rumors flying around the internet are true, it looks like Tom Brady and Gisele Bündchen may be thinking about ending their high profile marriage.  

For our international readers (who might not be so up to speed on western celebrities) Tom Brady is an American football player who is widely considered to be the GOAT (“Greatest of All Time”). Tom played twenty seasons for the New England Patriots, leading their dynasty from 2001 to 2019, and winning six Super Bowls (the championship of American football). Gisele Bündchen Is a globally renowned supermodel who was listed as the 16th richest woman in the entertainment industry in 2007 and in 2014 was listed as the 89th Most Powerful Woman in the World by Forbes.

According to Page Six (which is a gossip website, so take this news with a sizable grain of salt), they have been living separately for the past couple months in the wake of an epic fight, and now they are beginning the process of separation (both emotional and financial).

Reports indicate that Gisele feels that Tom should be spending more time home with their kids (including their son Benjamin, 12, their daughter Vivian, 9, as well as Tom’s son Jack, 15, from his first relationship with Kathryn Moynahan). In an interview with ELLE earlier this year Gisele said that she would like for Tom to “be more present” amid his busy football career (Tom is still playing at age 45, making him one of the oldest currently active players in the National Football league).

It is never easy to maintain a marriage under the harsh spotlight constantly trained on celebrity couples, and both Tom and Gisele undoubtedly have enormous professional pressures that continually take them away from each other and from their family.  And even though many of us can’t imagine the kind of wealth and fame Tom and Gisele experience on a daily basis, we can still sympathize with the kinds of relationship issues they are reportedly confronting. No matter how much money you have, or how famous you are, issues and divisions can emerge in marriages, even between spouses who appear to the outside world to be happy and committed.

I truly hope that Tom and Gisele will be able to find a way to work through these challenges and get their relationship back on track. But Page Six also reports that they have both retained divorce lawyers, so it may be that now there is no turning back. As one unnamed source in the Page Six story put it, “I don’t think there will be any coming back now. They both have lawyers and are looking at what a split will entail, who gets what and what the finances will be.”

This divorce has the potential to draw massive attention from the media, and as such, I would urge them both (and their counsel) to strongly consider mediation. Working confidentially with a trained, professional mediator could really help Tom and Gisele to resolve their issues privately and effectively, while helping them to envision a new living structure that might work better for the two of them, and their kids.

Using mediation to resolve family disputes has grown in popularity over the past few decades, and now mediation is the default first step for most divorces in the United States. I believe a skilled mediator could be very helpful in providing Tom and Gisele a structure for the conversations that need to happen, stepping through each topic that needs to be addressed and considering all the options available.

It is important to note that a mediator has no decision making power. All a mediator can do is help to facilitate a structured conversation between Tom and Gisele, assisting their negotiation, so they can craft a mutually acceptable separation agreement without relying on the decision of a judge.

Once Gisele and Tom work out a separation agreement with the mediator, they can then file that agreement with the court and request an uncontested divorce. These kinds of filings are often processed more quickly because all the key questions have already been worked out, so judges can process the case in months instead of years.

I imagine that Gisele and Tom will want this process to work out quickly, and mediation offers major advantages in that area. Mediators can set up a meeting tomorrow and make progress every day Tom and Gisele are willing to make progress. In fact, Gisele and Tom will be fully in charge of setting a calendar that works for them (around their professional obligations).  If they lawyer up and take their negotiations into court they will find that the judicial process moves very slowly, by design. The calendar will be set by the court, with no consideration of Tom and Gisele’s personal conflicts. Their case will just be one of thousands of other cases, so they will have to wait their turn for each step in the process.

Mediation is very flexible.  Sessions with the mediator can happen online or face-to-face, and the main issues, including property division and child support, can be addressed without engaging in the one-side-versus-the-other dynamic that is the basis of the court system.

More complex marital situations like Tom and Gisele’s (where there are a lot of assets that need to be divided) really require expert guidance in navigating all the issues that need to be resolved.  An experienced mediator can share solutions that have worked in other similar situations and highlight all the questions that need to be addressed in the final agreement.

Another plus of mediation is that it would give Tom and Gisele a lot more control over both the process and the resolution to their situation. Because all outcomes in mediation require the agreement of both parties, Tom and Gisele would both have veto power over any solution, which would keep control in their own hands. No one can understand their situation and their needs as well as they do, so mediation will keep them in the driver seat as opposed to asking a judge to decide what should happen moving forward.

Because of time and resource limitations, judges often default to 50/50 divisions and one-size-fits-all solutions. That is much different than a mediation process where Gisele and Tom might agree to specifically tailored solutions that are customized for the particular needs of their kids, homes, jobs, and family.

When fortunes like Tom and Gisele’s are in play, there is the potential for lots of lawyers to make lots of money.  The longer the case goes the more billable hours that can be charged, on both sides.  In mediation the mediator’s fee is split by the parties, and the mediator has much less incentive to extend the process with motions, discovery, extensive testimony, and never-ending document drafts being sent between offices. There’s no question that lawyers should be involved in a complex case like this, and the lawyers should definitely participate in the mediation process, but having a mediator as the process coordinator can help to manage the dialogue so that an us-versus-them orientation doesn’t take over and extend the timeline unnecessarily.

Another option for Tom and Gisele to consider is collaborative law. In a collaborative law divorce Gisele and Tom will sign an agreement with their lawyers that the lawyers will never represent them in court, which obviates the us-vs-them orientation in the negotiations and creates a more collaborative frame for discussions. Because the lawyers know they will never take the case to court (and because Tom and Gisele probably won’t want to find a new attorney to represent them in litigation) the collaborative law process creates a strong incentive to work out all the key issues. Collaborative law divorces are usually more expensive than mediation, but still much less expensive than a fully litigated divorce through the courts.

Now it may be that Gisele and Tom will want other professionals to help out with their separation. For instance, they might want an appraiser to assess the value of their property, or a psychologist or to help work out child custody and visitation issues. Even if the case went to court these kinds of professionals might be invited into the process to help ensure fairness. But in a court process these individuals would not only need to share their expert advice and assistance, they’d need to testify as well, and each side might feel the need to get their own experts. In mediation they are freer to provide assistance without taking sides, and with an exclusive focus on the needs of the family.

Gisele and Tom may make the decision to no longer be married to each other, but that doesn’t mean they won’t have a relationship after the divorce.  Vivian is only nine, so they will have at least nine more years of co-parenting before she becomes an adult.  And parenting doesn’t stop at 18; Tom and Gisele will likely see each other at her graduations, at her wedding, and at the birth of their grandchildren. 

The best way to plan and design this next relationship is not to begin by fighting in court and engaging in back and forth accusations over who is in the wrong. Court battles can lead to hostility and resentment that can poison the co-parenting relationship moving forward. This hostility can also impact the health and well-being of the kids. Long-term studies have shown that mediation resulted in parents who don’t live with their children seeing the children more often than those who fought out their divorce in court.

In another high profile example of a celebrity divorce, Gwyneth Paltrow famously described her separation from Chris Martin as a “conscious uncoupling,” and Vanity Fair observed that they “really did manage to amicably navigate their breakup as they’ve not only remained close friends, but are even outspoken in their support of one another’s relationships.”

This kind of “good divorce” is possible with mediation. If Gisele and Tom really have reached the end of the road, Gwyneth and Chris’ experience should offer some comfort to them as an example of getting it right, even under the media spotlight. There may be voices around Gisele and Tom feeding their anger and urging them to fight, but I hope they will take my advice and explore mediation as a way to find futures apart from each other that will enable both of them (and their kids) to be happy and fulfilled over the longer term.

                        author

Colin Rule

Colin Rule is CEO of Resourceful Internet Solutions, Inc. ("RIS"), home of Mediate.com, MediateUniversity.com, Arbitrate.com, CaseloadManager.com and a number of additional leading online dispute resolution initiatives.  From 2017 to 2020, Colin was Vice President for Online Dispute Resolution at Tyler Technologies. Tyler acquired Modria.com, an ODR provider that Colin co-founded,… MORE >

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