Going Deeper in Mediation

Zero-sum disputes present the hardest challenge for divorcing couples and mediators alike. Whenever an issue is framed as "if you win I lose" or "the more you get the less I get" spouses tend to become less flexible and to focus on their side of the argument rather than seeing the bigger picture.  
Digging deeper to reveal the needs and emotions that lay underneath the "numbers" may help break the win-lose situation and help spouses look beyond their immediate interest. 

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.

Evaluating the Value of a Degree Earned During Marriage – The Story of Sam and Charlene

Sam and Charlene were a young couple who came in to mediation in order to settle their divorce.  They had been married about 7 years, and had no children.  During their first mediation session, Sam and Charlene resolved all issues regarding their separation – timing for separating, which of them would stay in the apartment, dividing bank accounts, separating wedding gifts and other things.  The only question remaining was what payment, if any, Charlene, the newly admitted, presently unemployed attorney, would pay to Sam for the value of her law degree and license earned during the marriage.

Under NY law, a degree or license earned during the marriage would be considered to be marital property, subject to discussion about how to equitably divide it.  The value is based on the projected (imagined) future earnings of the spouse, during the lifetime of her/his career.

Charlene and Sam initially thought that the law would provide “the answer.”  They asked me to prepare a legal memo outlining arguments and summarizing published decisions, regarding law degrees.  In addition, while I gathered that information, I polled some groups of mediators and attorneys, to get anecdotal evidence of how people resolved this issue, outside of published cases.

The information I presented did not resolve the case. 

Sam was a guy who loved spreadsheets, and he came in to our next session with 8 different possibilities for equitable distribution, with 8 different possible values for the license.

This did not resolve the case. 

It seemed to me that the arguments went round and round, with each person repeating his/her view – neither coming closer to understanding the other.  I grew frustrated; this was not rocket science, surely we could resolve it.

Sam had supported Charlene through law school, and felt that he thus had a stake in her new career. 

Part of the problem was that Charlene was not working.  She got out of law school during a recession, and had not been able to find a job for a year.  She was working – but not as a lawyer – so she felt that her degree was worthless. 

We could not accurately project what she would earn, over the course of her career, with her law degree, since we had no idea of what earnings she might – or might not – have as a lawyer.  Sam came in with numbers gleaned from other people’s law degrees – where payouts to the spouse were more than $300,000 – but Charlene did not see how she could possibly pay such an amount to Sam.  We discussed having payments over a period of years, based on her future actual earnings – but neither of them wanted to be tied together for the future.

In our 6th mediation session, Sam surprised me by saying, “I now understand that the problem is more about feelings, so it isn’t going to be solved by spreadsheets.  Charlene, because unemployed, is concerned about financial security for the future.  When I realized this, I asked her, ‘How much money would you need in the bank in order to feel secure about moving forward?’  We subtracted this from our joint savings account, and I will take the balance, so here is the division which we have decided upon.”  (And he gave me another spreadsheet.)

Surprisingly, what they came up with was a lower settlement in monetary terms, than some of the options which Sam had put on the table at another point, but because it was matched to both of their interests – because everything was named correctly for them – and because he could not understand her insecurity about the future – and she could now understand his need for a logical basis for the outcome – they were both happy with the settlement. 

It took many hours of discussion, and of considering different ways of resolving their question, as well as different options for resolution, until we came up with something that felt right for Charlene and Sam.

                       

Rachel Fishman Green

Rachel Fishman Green, Esq. is an attorney who runs ReSolutions Mediation Services, based in Park Slope, Brooklyn, since 1995.  Rachel is the Chair of the Joint Ethics Committee of the New York State Council on Divorce Mediation and the Family & Divorce Mediation Council of Greater New York, which accepts and… MORE >