Reprinted from COSMOPOLITAN
August 1995

 Divorce Mediation

And other (cheap) ways to split

By Anne Field

 Unhampered by lawyers and courtroom rules, even couples who'd rather kill than cuddle can achieve a peaceful parting.

At their first meeting with a mediator, Dorothy and Jack Walter* sat nose-to-nose, hurling obscenities and battling over money, sex, their suburban home, her affair with the gardener, his with his secretary.  Both their decibel and resentment levels were soaring.

Thirty acrimonious sessions later, the pair miraculously cobbled out a treaty to end their ten-year marital war.  They also credited the mediation process with literally saving their lives; one more plate-throwing, eardrum-shattering incident and they'd have lunged at each other's throats.

The number of miserably married couples, who, like the Walters are turning to mediation when it's finally time to call it quits, is growing exponentially, according to Susan Snow, a Chicago divorce-court judge.  These ex-spouse wannabe, she notes, avoid the out-of-control expenses, lengthy delays, and emotional trauma of traditional divorce litigation.

Compare the price tags: An uncontested, amicable divorce may cost $5,000 per partner and drag on for more than a year. And that's for mates who still like each other. A warring duo like Dorothy and Jack could wind up spending $30,000 apiece, and their case might span an entire Presidential administration!  Mediation, on the other hand, is fast and relatively inexpensive: $100 to $250 per session.  If children are an issue, the process usually takes six to twelve weeks; if not, perhaps only three or four weeks. The tab for the Walters' seven-month marathon? Only $3,000.

"The legal system is designed so that the more couples fight, the more money their lawyers earn," says Lynn Jacob, president of the Academy of Family Mediators. "But we get them to work together so both win!"

The Process

The basic philosophy of divorce mediation is that even two people who despise each other can reach an accord if they're guided by a neutral third party, someone trained in the intricacies of negotiation. A divorce mediator, usually a lawyer or therapist, asks incisive questions, cuts through anger and hurt, and facilitates rational decision-making.

Consider Debbie and  Michael White, both thirty-six-year-old journalists, facing the finale of their fifteen-year marriage Disturbed by his wife's workaholic schedule and jealous of her higher-profile career.  Michael left Debbie and their two small children and moved in with his eighteen-year-old girlfriend.

In a mediator's presence, Debbie twisted in the chair so she faced away from Michael and, her voice quivering, refused ever to let him see their kids again. Then she paused, wept, and confessed her true feelings: Al­though Michael had devastated her, she still loved him and really wanted to welcome him back into her home, bed, life..

With a few carefully worded questions, the mediator prompted Debbie to face facts: Her marriage was kaput, and Michael's young girlfriend was merely a symptom, not a cause.  He also forced her to focus not on emotional wounds but on the matter of immediate concern: child-visitation rights.  One hour later, a compromise was reached: The toddlers would see their dad on weekends, but his girl friend was persona non grata, and her home was off-limits.

Mediation is most useful when children are involved, because even though husbands and wives are parting, they'll still have to communicate and cooperate as moms and dads. "In the adversarial system, anything goes," says pioneering mediator John Haynes of Northport, New York.  "But mediation is conducted to preserve the parental relationship, not destroy it."  As a result, courts in twenty-five states now require child custody disagreements to go through mediation.

Sessions are usually one hour long.  Partners are asked to bring pertinent information: tax returns, a list of assets, bank records.  When they reach an equitable agreement, their attorneys file official documents with the court.  Although decisions made in mediation aren't binding, up to 90 percent of cases are successfully settled, says Haynes. "People realize it's better to have something they've both created than a decision handed down by a judge."

That's certainly true for Vivian and Bill Bernstein, spouses and business partners for twelve years.  Together they built a multi-million dollar mail-order company, which neither wanted to give up when their marriage fell apart.  Continuing as co owners was out of the question every business discussion devolved into a screamfest.  Without lawyers, judges, or formal

courtroom rules to get in the way, the mediator first got Vivian and Bill to agree on a general plan whereby one spouse would keep the business, buy out the other, and lend him or her enough money to start a new venture. Then he instructed them to calculate their company's net worth.  Finally, the mates realized on their own that Vivian, who'd had more contact with overseas suppliers, should keep the business;  Bill, who was more aggressive, would do better taking the loan and launching a new product line.

Simple Solutions

The biggest advantage of divorce mediation is that it affords couples the chance to explore myriad options, no matter how idiosyncratic; As a bonus, they can consider developments that might arise years after their divorce becomes final.  A joint custody plan agreed upon when a child is three probably won't be practical five years later, when she's in school; remarriage or relocation of an ex-spouse may also affect terms of their agreement.

In addition, divorcing couples are often so blinded by rage they're unable to see even the most obvious solutions to their disputes. When Brad Heller announced he and wife Natalie couldn't afford to pay the security de­posits and rent on two separate apartments, the mediator reviewed the couple's investments and asked, "Isn't there anything you could liquidate?" The answer was so simple.  "We could sell our time-share condo in the Bahamas . . . " declared Brad.  "And split the profit," said Natalie.  They shook hands, paid the mediator, and went home to plan their lives apart.

Similarly, after five years of non-stop bickering, Jennifer and Artic Bartwell could no longer bear living together.  Without children or joint property, their divorce should have been a cinch. The one sticking point: how to break up their sterling silver and darkroom equipment, all of which had been wedding gifts from mutual friends. After three unproductive sessions, a breakthrough cane when the mediator asked Jennifer, "Forget about monetary value; which would you Prefer?"

"The silver," she replied.

"And I'd like the Darkroom stuff," said Artie.

Conflict resolved.

The Downside

Women's-rights advocates urge victims of domestic violence to skip mediation arid go directly to court. Battered wives, they contend, are too intimidated to defend themselves, especially when husband-tormentors are sitting by their sides.

Critics also charge that the process can backfire even when abuse isn't an issue. "Women tend to be more accommodating than men, and that works to our disadvantage," says Joan Zorza, a senior attorney with the National Center on Women and Family Law in New York City.  Plus, a wife who's less money-smart than her husband may not be aware of investments and expenses or able to grasp the future significance of every small decision she makes now.

Getting What You Deserve

A good mediator, however, uses the process to educate.  When a contentious couple presents financial information, he may put the data on a big chart.  If either party seems confused, he'll clarify.  "This is empowering for women, says Diane Neumann, a mediator in Framingham [Newton], Massachusetts.  "We may walk in having never focused on money issues and leave with a thorough understanding of personal finance."

Meet housewife Susan Swanson. Her husband, Charles, an orthopedic surgeon whose annual income exceeds two hundred thousand dollars, was seeking a divorce.  During mediation, Charles presented his plan:  He'd keep his sizeable pension and his wife would get the house. This seemed reasonable to Susan until the mediator explained that a wife is legally entitled to half of her husband s retirement savings.  What's more, if Susan kept the house, she'd struggle to make the mortgage payments for the next twenty-five years, while Charles's pension would be worth millions.

Shocked, Susan threatened to stop the mediation and hire renowned divorce attorney Raoul Felder, With the specter of legal  action  looming, Charles withdrew his original proposal and offered to share riot only his pension but also his stock portfolio arid African art collection.

The sweetest part of this deal, says Susan, is she crafted it herself.  With a little help from the mediator.