Is Divorce Mediation Right for You? Here Are Two Emotional Roadblocks That Could Cost You Dearly.
One of the many potential benefits of divorce mediation over a litigated “courtroom” divorce is that both you and your partner can make mutually beneficial decisions together instead of relinquishing control to a judge. This is so important when it comes to making big decisions about your children, of course. But what about when it comes to property? I’d like to share some thoughts about how to make it work, what can get in the way, and use a few stories to help you decide if mediation is right for you.
Do You Want to Split the Baby?
Not literally! Now that I have your attention, let me remind you of a Bible story with which you may already be familiar. Two women who both claimed to be the mother of an infant child brought their case before King Solomon to settle the matter. Unable to determine which woman was telling the truth, Solomon ordered that a sword be used to cut the baby into two as a fair resolution that would allow each woman to have half a baby. One woman was satisfied with the judgement and agreed to the decision, while the other begged Solomon not to kill the baby but instead spare his life and give him to the other woman. It was her selflessness that showed Solomon she was the child’s real mother.
When you hear of a “split the baby negotiation,” this is the story being referenced. It typically describes a situation where both parties simultaneously win and lose in the agreement. It certainly describes what often happens in a divorce where the two parties can’t or won’t come to a mutual agreement about dividing assets and a judge has to make the final determination. Trust me—both parties are usually pretty dissatisfied.
Being Willing to Compromise Creates More Mutual Wins
When it comes to divorce, I think most people can relate to this feeling of both winning and losing at the same time. The dissolution of a marriage, the splitting up of a family, the splitting up of belongings and properties and assets are difficult to deal with. There’s pain in ending one chapter and hope for a fresh beginning—the best one can usually hope for is an experience that is bittersweet.
One of the reasons I love working with couples who use mediation to settle their divorce is because of the spirit of cooperation both parties try to embrace in the process. That’s not to say it’s easy for them—but the fact that they want to part peacefully starts them off on the right foot.
Still, no one is perfect, and we bring not only our recent hurt and disappointment into the divorce process but also our lifelong characteristics, habits, and attitudes. The mediation process is there to help everyone negotiate in a productive way with an eye toward win-win resolutions.
Entitlement and Resentment: Significant Emotional Roadblocks in Mediation
There are certain emotional roadblocks I routinely see get in the way of smooth negotiations. One of those is a sense of entitlement and a strong internal drive for people to make sure they don’t settle for less than they feel they deserve.
Entitlement and resentment often go hand in hand, as you can imagine. Even if you weren’t “keeping score” while you were married, at the end, you may find yourself making a mental tally of all the ways and times you believe you gave more than your spouse did and how unappreciated or taken for granted you now feel. Who earned more, spent more, did more housework, spent more time with the kids, enjoyed more time with friends or hobbies, had the better or worse extended family...there are countless reasons to feel you gave more than your spouse did and now maybe you want to make sure you are compensated for your sacrifices. After all, aren’t you owed for your trouble?
Resentment and entitlement are big emotional roadblocks that need to be overcome in order to enjoy a successful mediated divorce settlement. Let me tell you two true stories that may inspire you to check your resentment and entitlement levels before you get started.
The Marriage of Cream and the Old Faithful Geyser
Consider the 1993 landmark divorce case of Olga and Howard Cream. They were married in 1970, and in 1973 they purchased Old Faithful Geyser of California (yes, you can own a geyser!). For 15 years, they worked together to manage the property and run the on-site business. Then the marriage ended, and so did their desire to work together in the business.
Both parties claimed the combined value of the property and the business was $800,000, but neither one of them submitted an actual appraisal. Neither Olga nor Howard wanted to give up their half. Howard offered to buy Olga out at above-market value, but Olga declined. With the couple unable to come to a mutual agreement, the court stepped in.
Despite Olga’s repeated objections, the court ordered a nonbinding private auction. In this process, each party would enter a bid for one-half the value of the business, and whoever entered the highest bid would then buy out the other party at that price. Olga bid $596,000 and Howard was the auction winner with a bid of $600,000. The court valued the geyser at $1.2 million and awarded the property and business to Howard.
Here’s where it gets tricky. Howard was unable to make escrow, which then gave Olga the chance to buy him out for $596,000. So she won, right? She got the geyser and the business. But she didn’t feel like she won. She was very unhappy that she had to pay 50% more than she would have had to pay on the property both she and Harold originally agreed was worth $800,000, not $1.2 million!
Olga won the property and the business but lost nearly $200,000 she didn’t feel was fair to pay for it. Harold lost the property and the business but won because he was ultimately paid more than 50% of the value of the business.
Think about that. If Olga and Howard could have come to an agreement together rather than handing control over to the court, they might have both felt better about the outcome.
By the way, Olga filed for divorce in 1987 and the whole ordeal wasn’t over until 1993. That means they both endured five long years of stress, conflict, and legal fees. I wonder, once it was all over, did they both think the fight was worth all that time and trouble (and money)?
How Much Is That Thing Really Worth?
I had a similar case a few years ago (no geysers involved in this one). My client and her husband were both dead-set on keeping a piece of framed artwork they had purchased together. Either of them could have purchased the same print online for about $300, but for some reason, this particular framed piece became a sticking point and neither party would give it up. (Was their stubbornness because of emotional attachment or spite or a sense of entitlement? I never did understand!)
The other attorney and I finally convinced them to agree to a silent "auction" where each of them would bid for the piece and whoever placed the higher bid would “win” and pay the other party 50% of the winning value and keep the artwork. My client bid $1,500 and her spouse bid $800. She paid him $750 for his share and kept the artwork.
Technically, my client “won” because she got the keep the artwork. But she didn’t just pay him 50% of the real value. She paid him quadruple what she should have--enough that he could buy two more of the same print and get them framed!
Technically, he “lost” but he came out hundreds of dollars ahead on the deal. My client “won” the bid and kept the artwork but paid more than double its value. I couldn’t help but think both of them were operating from a place of resentment and entitlement—they both wanted to win, and that was more important than any sense of compromise either of them could muster.
But What If You Really ARE Feeling Resentful and Entitled?
Divorce is difficult for everyone, and it’s natural to have lots of negative emotions. If you didn’t, you probably wouldn’t be splitting up. It’s understandable. And it doesn’t mean mediation is off the table. But if one or both of you approach the situation with the intention of refusing to settle for less than you feel you deserve, it’s going to be practically impossible to arrive at mutually satisfactory outcomes. You’ll lose more than you win. If you want to make sure your partner pays big time, hire a bulldog lawyer and fight it out in court.
But if you want to experience as many wins as possible, use mediation. Mediators are trained in helping negotiations run smoothly. We are skilled in conflict resolution and in facilitating constructive conversation. We help both parties practice putting emotions aside and stay focused on a spirit of cooperation and compromise. There will still be bumps in the road, but the important thing is that a mediator will help you both stay on track and aim for positive outcomes.
Collaborative divorce is another way to negotiate without giving control to a judge. In collaborative divorce, there are two trained divorce coaches who are skilled at helping you put your emotional roadblocks aside and have effective communication during a difficult time. Learn more about collaborative divorce.
