Everyone who reads this blog will know that I am a major proponent of mediation. It’s a wonderful process for a couple to use to craft an agreement that meets their needs, in a more personal and respectful way than litigation, not to mention often ‘way less expensive. But a recent settlement that came out of a mediation, highlights some of the dangers inherent in the process.
During this mediation, despite the efforts of a very competent and experienced mediator, the husband- a powerful and very highly compensated physician, dominated his homemaker wife. Even the mediation notes indicate that the wife felt disadvantaged over many issues, especially finances. She ‘freely’ accepted an agreement that was much less than it could/should have been, just to end the process and her husband’s browbeating (outside the mediation room), using financial spreadsheets prepared by- you guessed it- her husband.
Mediation is a great process for couples who want to reach a fair and reasonable solution, who can talk (even a little bit) about the issues they face and start from a level playing field. What is a level playing field? From a financial point of view, it’s a position where both partners are aware of the resources and debts that they face, the value of businesses and property they may own either separately or jointly. It’s a situation where each partner can make his/her wishes known without fear of reprisal, and there is some feeling of confidence in the honesty of the process. Although full, formal financial disclosure is not required in mediation, full informal disclosure is. How can you make a decision about the division of assets, unless you know what those assets are? For the non-monied spouse, that is, the spouse who did NOT manage the investments, or pay the bills, or even earn the money which funded the marital household, this can be a difficult situation. Often this is what brings clients to me. They want to understand the finances of their marriage so that they can make an informed decision about the division of property and debt, alimony and child support. I often work as an advocate (for one party) or as a neutral (for both spouses) in helping them to reach a settlement that’s fair for their particular situation. We review ‘what-if’ scenarios, look at different options and come to the best one possible. I work in concert with their Mediator, and always second the Mediator’s recommendation that each spouse take the proposal to consult with their own attorney, just to be sure that the agreement in legal, fair and reasonable.
Where the mediation process can run aground, is when there is a basic imbalance of power between the partners. The combination of an overbearing, powerful, controlling spouse (let’s say, husband- although it is not always so) and the counterpart of a submissive wife, used to allowing her husband to make the major decisions, is a setting that calls for a strong and experienced mediator- and maybe some extra help, as well. Each spouse must be able to make their feelings known- not just one. And especially not just the one who controls the checkbook and credit cards, and threatens to cut off both, if she does not agree with his settlement offer. Spouses settle into a communication pattern during their marriage. Deciding to separate does not automatically change it- old patterns are hard to break. That can make effective negotiation impossible.
Marital property is not one spouse’s to GIVE; legally both parties own it, including: retirement accounts and pensions, investments, bank accounts, houses, vehicles, businesses, golf clubs, sports cars, jewelry, timeshares- just about everything acquired during the marriage, no matter whose name is on the title, who’s driving it or whose drawer it’s in.
When fairness takes a back seat to bullying, it’s time to take a break from ‘standard’ Mediation, and call in the lawyers. Sometimes you need someone else to speak for you, and have your back. With the consent of your spouse, your lawyer can come and sit with you in the mediation session itself, and be right there to discuss the options. The same can be true for a CDFA (Certified Divorce Financial Analyst), especially to help you with the negotiation of complex financial issues. This strategy can provide you the support you need to reach a fair settlement.
If that doesn’t work, or if your spouse won’t agree to your having a counselor in the room ( he could have one, too!), then sometimes you need to move on to litigation. In litigation, the lawyers do the negotiating on your behalf. Still, around 95% of all cases do settle. If you can’t, there’s always the option, however distasteful and expensive, of going to trial and letting the Judge decide.
If you are the non-monied spouse, and are concerned that you can’t pay the retainer for a lawyer on the same level as your husband’s, all is not lost. Your lawyer can petition the court to have your husband pay the attorney fees, so that you can be represented equally as well, even if you don’t have the checkbook.
Of course, in all situations, make sure that you and your children are safe, and let your attorney and other advisers know if you feel threatened. Your safety comes first. We’ll all help you with the rest.
