In more financially complex divorces, lawyers and clients often get muddled up in experts and charts and law which leads the case to become high conflict which in turn makes settlement so difficult or next to impossible leaving an expensive trial to be the inevitable next step. In these cases it is so important to discuss emotions, fears, and feelings as they directly relate to the financial issues because from these discussions will surface the better answer to the pending financial issue(s).
Those lawyers who try and draw a line in the sand and stand firm – going for the win at all costs – do a grave disservice to their clients. Even if the parties will not have any ongoing relationship post mediation, this was a marriage and that carries with it intense emotion. Moreover, there will be real and valid concerns over a new standard of living, whether the job market is stable, fear of the unknown, loss of security and entitlement to a share of future money that will be produced off an asset created in the marriage, i.e. a degree. These concerns are real and must be addressed outside the cold hard law, expert testimony or hard numbers. A good mediator who does not drown in the experts, charts and law and carefully examines and open up to discussion the underlying fears and emotions driving the financial issues will do a world of good for the parties. Specifically, a guided conversation of these real “interests” will better define the parameters of the financial issue(s) and simultaneously change the dynamic of the negotiation. By addressing these needs/interests, the parties will focus more on what it is going to take to move on for them as opposed to dwelling in feelings of entitlement or feelings of resentment for “owing” what one party may not accept as true despite what the law says or how the numbers crunch out.
I was involved in a fair amount of high end divorces and watched first-hand as the big financial issues became “line in the sand” positions from both sides. I also watched mediators spin around trying to argue law and expert testimony and either pound parties into submission or step back and let them flounder in the legalese of the issue or worse yet, the ego of their attorney. That only raised the conflict, heightened the fear, and brought out the worst, most unreasonable positions in the clients. Threatened animals do not bring out their best selves. A fair amount of times the case would end up settling but only because the costs became too high. That scenario usually left the parties resentful, dissatisfied with the system and bitter over the unresolved conflict. How much better for these two people who at one point shared a life together, if a settlement that addressed the real interests at play is effectuated.
Mediators can be so effective in these situations. Do not get me wrong mediation does not mean easy or quick. It takes work and often takes time to redirect people out of anger or betrayal or other hurt. But in our work as mediators we see that people can be moved. In fact, when people are presented with the option of self-improvement and light at the end of the tunnel especially from a third party they know cares about them and the process, they move. A facilitated process like I am talking about is so different in kind than litigation it is a giant paradigm shift. This process is not about conflict and antagonism but about engaging in better communication, focusing inward and on personal growth and movement forward in their own lives.
A brief note on the Collaborative process – while I am happy that we are moving in the direction of non-litigation in family law, I still believe that for many high asset cases mediation is a better, more productive process than collaborative law precisely because lawyers are not guiding the case. It is my fundamental belief that the parties should control the process of the divorce and how they are going to work things out. Collaborative law still puts lawyers in control of the process and not the parties. A good family mediator will know the law enough to talk about it without advising clients. Proper discovery and expert analysis can easily be a part of the mediation process to assure fundamental fairness and provide the parties with necessary information. Finally, any Agreement can be reviewed by an attorney. These safeguards will protect the process. But most importantly, when the process becomes something the parties control, when the parties are facilitated and encouraged to examine needs and interests, issues have a better chance of resolving fairly.
The following story shows how diverting the discussion from numbers and charts to “what really bothers me” or “what I am afraid of” can help couples reach an understanding even in the most complicated issues.
Thank you Rachel Fishman Greene, Esq