Until Death (or Mediation) Do Us Part…

By: Gary Atkinson

Our divorce had been proceeding along an unproductive path that only led us deeper into bitter territory. Each of us took a certain glee in winning any little skirmish, no matter how petty, and so the lawyers kept duking it out (and planning Caribbean vacations on the escalating costs of our escalating conflict). My wife despised communicating through the attorneys and pushed for mediation, but because she wanted it, I immediately concluded that mediation would only hurt me further. I decided to be more open minded when my lawyer advised me that it could save me money in the long run (probably good news for everyone but a certain concierge in Aruba). More importantly, mediation also offered me a chance to retain some control over the ultimate settlement.

Participating in traditional divorce proceedings would mean each of us submitting financial affidavits, special requests, property valuations and other items, each of which would be subject to dispute. It would also require a judge wade through the various testimonies in order to render a settlement. In our case, mediation gave each of us an opportunity to fight for what was most important to us, and to try to compromise where it was appropriate.

It quickly became clear that we would need mediation to simply initiate mediation. We could not agree on the actual mediator. I suggested that we use the couple’s counselor that we’d been seeing, who I considered reasonable and who was already familiar with the combatants. My wife felt that this therapist was too much in my camp to be fair to her interests. So, once again, we turned to our individual representatives who agreed on using a third party attorney for this purpose.

Our custody issues were resolved rather quickly. We both managed to set aside our monumental differences to do something right by the kids. But the financial matters were staggeringly difficult to negotiate. After battling it out for an entire morning, we eventually reached a contingent agreement on splitting the assets. I found myself wishing that I’d stayed awake more in math class because by their calculation, that meant she got 62% to my 38%. But I did get our summer cottage (and therefore a place to sleep in the warm months).

At the next mediation session, the pressure increased for both parties to capitulate (they called it “compromise”). It was uncomfortable but critical to making progress, and so, reluctantly, I let go of a number of issues… some of which I would never have won anyway. My wife was also compelled to stop mentally constructing her expansive vault for my earnings. The product of the last day’s work was an agreement that I’m certain we both hated. This, of course, is usually the hallmark of a fair settlement.

I’m convinced that had we simply turned the whole mess over to the courts, her monthly income (through alimony and Child Support) would have been significantly reduced. On the other hand, the judge would likely have ordered a closer connection between my continuing earnings and her claim against them.

Thankfully, we both managed to set aside our mounting selfishness to create some innovative visitation and custody schedules. Mediation allowed us to set up calendars that were more meaningful to both of us, and more beneficial to our children. And, in the end, that was what was most important.