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How In the WORLD Could Mediation Work?

Julie came from a wealthy family–grew up with that proverbial silver spoon practically shoved down her throat. Were her parents thrilled when she met Jim, whose highest vocational training had occurred at McDonald’s and who had never owned or rented his own apartment–and then shared the news that the two would be married within a few months?

Well, no, they weren’t, but they eventually got used to it, and accepted Jim into the family, tentatively, of course, but always made conversation with him at family parties when no one else was engaging him. And Julie taught him to enjoy the finer things of life–not that a Filet-O-Fish isn’t still one of the better foods there is, she agreed with Jim there (as who wouldn’t?), but still–and tried to find a number of jobs for him (none successful), but with parental help and her job in Daddy’s business, they lived a good middle-class life, even if it required serious parental infusions of cash straight into their bank account every few years.

Sometimes Julie felt her parents thought Jim was, well, beneath what she could have done, but throughout the years he’d come through for her in a lot of ways. She’d never felt attractive, had always been picked on by her parents and siblings for her weight, and Jim said she was just fine with him–beautiful the way she was.

Jim never found a steady job, so he did the domestic side of life Julie wasn’t great at–was a champ about diapers and bottles and mid-night feeds, packed great healthy lunches for the kids and her–took in both of their cars (gifts from Daddy, true) to be serviced so Julie didn’t have to.

Granted all this diapering and car-servicing didn’t raise his social class one iota in Daddy’s eyes, but for Julie fact that he made no money and contributed nothing that way would have all been fine–fine! Fine. It was when, after their third kid, Jim declared himself ‘restless,’ and restless-ed his way right on out of the house and the marriage that  Julie realized something she didn’t feel fine about. For when Jim walked, he planned to walk with half their bank account–as seemed reasonable to the divorce lawyer he spoke to, Jim asserted–and that money was mostly Julie’s Dad’s, partly Julie’s Mom’s what with her ability to pick a stock and hold until the money was needed, partly Julie’s from her job in sales in Daddy’s business–but if there was one person whose money that wasn’t? Well, that person was the one walking out the door with half of it.

couple-gazing

It would have been no surprise if Julie went to a high-power divorce lawyer–retained by Daddy–and explained her position: Jim had no right to the family money-and certainly not half of Julie’s account! The nerve!–so it was time to do whatever it took to remove that cash from his possession.

But here’s a real innovation of divorce mediation:

Mediation works to move the mediating partners from their strong-held positions to their needs and interests.

It turns out that more often than not, what the mediating partners say they want isn’t what they really want at all.

So ideally mediation is not compromise (I italicized that for some visual variety. Naw, not really. I did it because it’s a crucial concept here–it’s NOT compromise–and here comes the rest–more italics coming), it’s both people getting what they want. I’m happy to repeat that, because it’s such an innovative concept. Mediation is both people getting what they want–it’s just that they didn’t know exactly what they wanted when they started the process.

So let’s return to my clients Jim and Julie. In a move that impressed me, given Julie’s parents’ desire to go after Jim in court, Julie and Jim actually decided to try out divorce mediation first. And you might think this could never work. HE believes he deserves one-half of all their assets; SHE believes he’s taking what isn’t rightfully his.

So those are their opening positions. Not much wiggle-room, huh?

Well, here’s where a mediator better kick in. Because, remember, it’s not the positions–it’s the real needs and interests.

So where do we go from here?

Well, Julie begins by claiming Jim gave nothing to the marriage, and now he has the unmitigated gall to walk off with her and her family’s money.

And Jim? What does ‘the crook’ have to say for himself? Well, he actually has some points, points Julie really knows if she calms down enough to think about them. What about the years of diapers and bottles and healthful lunches? What about the carpools and the food shopping and the creative dinners he made? What about his years of cleaning the house after Julie fired the maid–and the laundry, and bed-making, and light-bulb changing and dish-doing?

More so–what about the years that he made Julie real feel okay about herself physically, instead of encouraging her engagement in a constant battle with her physical being? What about the conversations they had, when Julie expressed her frustration with her parents for their domineering ways with her, and worried that she wasn’t enough of her own person? Or when only Jim could make her feel better about her mothering skills when their oldest acted up, throwing food off her high chair, even onto her parents’ white shag carpet–even when it was a grape-jelly sandwich?

What if we posit that marriage is like running a business–and it kind of is, isn’t it? And what we each do in the marriage is our contribution–we’re business partners. So let’s say one person gave the cash, and the other person put in the sweat equity. Well, when that business breaks up, the person who put in the cash can’t just say (sadly for them), “Well, I put in the money, so I’ll take that all back, please. Thank you.” For the business is now more than the sum of its parts. Rather, when it breaks up, each is entitled to half of the existing entity.

In fact, according to a statistic from Chase Manhattan Bank in the early 90s, staying home and taking care of the kids is a significant, quantifiable financial investment in the marriage, using a certain algorithm. At that time Chase assumed it would be the wife at home, and thus the Bank claimed that it would cost between $30,000 and $60,000 a year to replace a wife (odd how large the range is, no? Does it depend on whether she packs Hostess Twinkies for school snack, or organic raspberries? If not–why double?? Curiouser and curiouser, as Alice would have said.).

And as I suggested the business metaphor, and Jim gave an accounting of his contributions, Julie, who’d come in angry enough to burn Jim at the stake, along with all his known possessions, softened beyond any expectation.

For really, as I analyzed the situation–and it is similar in every divorce case–Julie’s position of claiming Jim was a crook who stole what wasn’t rightly his wasn’t really the issue. She also didn’t need the money–between her job in the business and her financial enmeshment with her parents, she could easily recover from Jim’s taking a share in the pie. So her position was in essence just a need of hers to not feel that she’d been played for the fool, just as her parents had intimated she was doing all those many years ago when she’d first brought a burger-flipping boyfriend home.

And Jim’s position–a nasty quip that he deserved the money because he had put up with Julie and his in-laws for nearly 10 years–quickly boiled down to his own need to feel that his contribution to the marriage was, at last, recognized and valued.

So you know how this case ended? Exactly as it started–with Jim winding up with half of all the couple’s assets. The difference, and what I believe makes mediation so powerful and creative? It’s that each person felt okay about it–felt heard by the other side, felt heard by me, felt their contribution throughout the years had been realized and valued–felt good enough to shake hands and then hug as they parted, not friends, but as two equals, with no need for revenge.

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