Over the past few years we have pointed out the many benefits of divorce mediation. Successful mediation, however, requires the right mindset, including a collaborative spirit and a willingness to openly share financial information. Without these factors, mediation might not succeed. A divorce case could even devolve into a high cost horror story!
In honor of Halloween, we are sharing two stories about how not to act in divorce mediation:
Marilyn and Cody: The Bait and Switch
Marilyn often joked that if they ever got divorced, she would “take Cody to the cleaners.” Cody never thought she was serious, though. When they did decide to split up after 15 years of marriage, he was sure she would be reasonable, especially when she agreed to try mediation.
At first things seemed to go smoothly. After a brief discussion, they agreed to joint custody of their 10 and 12-year-old children, with a roughly equal time-sharing schedule. Then they moved on to discussing property. Cody suggested that they sell their house and divide the profits.
“Oh no,” Marilyn answered. “I definitely need to keep the house.”
After a few more rounds of discussion, it became clear to Cody that Marilyn was intent on keeping the entire house for herself without giving him anything in return. She didn’t really have a good explanation for why she felt this way. She was just persistent.
“It’s a ridiculous position,” Cody pointed out.
“Okay,” Marilyn finally offered, “we can sell the house and split the profits, but only if we increase my parenting time to at least 75%. I think it will be better for the kids to have one home base.”
Cody was flabbergasted. “We already agreed on equal parenting time, and the house has nothing to do with that!”
Marilyn just shrugged. “Well, that’s what I want.”
A Strategy of Sabotage
So that was how it went. Every time Cody thought they had reached an agreement on one point, Marilyn would threaten to back-track unless she got everything she wanted on another.
Eventually, the mediator suggested a private caucus. When she spoke to Marilyn separately, Marilyn confessed that her goal was to keep “75% of everything.” When the mediator asked why that would be fair, Marilyn said “I think I deserve it because I put up with so much aggravation from Cody. I think I could get that in court.” The mediator suggested that Marilyn talk to a consulting attorney about what a court might really decide.
Unfortunately for Marilyn, court is where she and Cody eventually ended up. She did not get “75% of everything.” In fact, the judge was so annoyed by her entitled attitude that she ended up with less than half! She also earned some high attorneys’ fees for her obstinacy, and the judge ordered her to cover part of Cody’s fees as well.
Philip and Amanda: The Secret Success
Philip and Amanda had been struggling with their marriage for several years. Still, Amanda was surprised when in April of their 13th year of marriage, Philip suddenly decided it was time for a divorce and moved out.
Amanda’s biggest concern was temporary support. She had been a stay-at-home parent for the last few years and had no independent source of income. Philip was a business attorney and had been a partner at a law firm until about three years earlier, when he’d left to start his own practice. His income had then dropped to about one-third of its previous level. Philip suggested they go to mediation and put temporary support first on the agenda, and Amanda agreed.
At the first session, Philip brought in financial records for the business’s first three years. He and Amanda worked out a temporary family support amount based on those numbers. Amanda knew the amount would result in a financial struggle for her, but it looked reasonable based on the business records. The mediator simply commented that “both of you will have to do with less because its more expensive to maintain two homes.” This too sounded reasonable to Amanda.
They then moved on to talking about property division. Philip seemed a little surprised when the mediator suggested that they get a business appraisal. “It’s a one-person law practice,” he protested. “It doesn’t have any real value.” The mediator explained that the practice was marital property, and while valuation might not be complicated, it was necessary. Eventually, Philip and Amanda agreed to use a joint expert and get an abbreviated valuation.
The Shocking Reveal
The valuation report shocked both Amanda and the mediator. It turned out that Philip’s projected income for the current year was five times his income for the previous three years, due to a huge bill yet to be collected from a new client.
Amanda accused Philip of hiding his real income to get out of paying realistic support. He protested that support should only be based on his past income.
“Well no wonder you sprung the divorce on me when you did,” Amanda responded. “Obviously you were trying to cut me out. And you even wanted to cut the kids out! This temporary family support amount is a joke.”
The mediator told them that her job was to stay neutral. She suggested that each of them go consult with their respective attorneys. “You might also want to bring the attorneys to the next mediation session,” she added.
Amanda’s attorney believed that Philip had intentionally tried to hide income. She recommended that they take a more aggressive approach from here on in. She accompanied Amanda not only to the next mediation session, but to two more sessions after that. When Philip raised his offer of support only slightly, Amanda’s attorney convinced her that they needed to file a support motion in court.
Amanda did indeed obtain a considerably higher support amount in court. The court appearance was expensive for both parties, and the judge ordered Philip to pay most of Amanda’s attorneys’ fees. Philip, for obvious reasons, was unhappy with this result. Amanda was also unhappy, however. She welcomed the higher support, but she felt that the cost of the divorce was now eating into money they could have used for things like sending their kids to college.
Keep Your Divorce from Turning into a Horror Story
Don’t let these mediation horror stories happen to you! Marilyn eventually learned that one major key to a successful divorce negotiation is compromise, not staking out unreasonable positions. Its normal to sometimes have second thoughts during a negotiation. Constantly changing your mind about things you have already agreed to though, is not acting in good faith. Not to mention that trying to use your children as bargaining chips is especially horrifying! If Marilyn had consulted with an attorney earlier in the process, she might have developed a more realistic bargaining strategy and kept the divorce out of court.
Philip learned that another major key to successful mediation is being fully open and forthcoming about finances. He may have been an attorney himself, but he would have been wise to consult with a family law attorney before he went into mediation. Perhaps this could have helped him avoid paying massive attorneys’ fees.
Are you concerned that your divorce might end up as a horror story in court? One of our experienced and knowledgeable divorce mediators can help you prevent that from happening. Contact us today for an initial consultation.