{3:30 minutes to read} When I began practicing family law, one of the first lessons I learned was that clients do not consider all assets the same. The one asset that consistently holds a very special place in the heart of a client is a pension.

Clients express feeling a different sense of entitlement to their pension because:

• They performed at a job where their lives, health and safety were placed in jeopardy;
• They may have taken less in salary for the assurance of a pension in retirement;
• They worked very hard for this particular asset, and the other spouse did not.

Whatever the reason, it is difficult for them to consider sharing their pension.

Objectively, the pension holder understands that if they made contributions to this benefit and the employer matched those contributions, such as in a 401(k), there is no question that the account would be a marital asset to be shared with their spouse.

They also understand that if they were at a job where they actually earned more in salary because there was no pension benefit provided by the employer, and that salary was then accumulated in other assets, that, too, would be shared equally with their spouse.

On an emotional level, however, it just feels profoundly different to be told you have to share a pension versus sharing a 401(k) or IRA account.

There are ways to address this in mediation. The first step is to have a discussion as to the importance of the pension to the party so that their reasoning and beliefs are on the table. It is also good to discuss the expectations that the other spouse had for sharing in those pension benefits when they both retired and choices that he or she may have made based on that expectation.

In terms of the distribution, the most even-handed way to divide a pension would be to enter an order for the parties to share the future payments when the pension holder retires. But it is the parties’ asset, and the most even-handed division may not work for them. They should decide how best to divide it, and they may consider the following:

• The pros and cons of getting a present value of the pension and possibly offsetting that against another asset.
• The pros and cons of life insurance rather than taking a survivor benefit.
• The availability of a lower-cost option for the continuation of pension benefits such as a 5- or 10-year guarantee.
• What else the pension holder may be willing to give up to retain the pension.

These types of discussions, at the very least, permit each party to be heard and understood. Hopefully, it will also lead to more creative resolutions on this sometimes sensitive issue.

{3:48 minutes to read} Even before the enactment of New York’s post-divorce maintenance statute, most mediators and attorneys worked with an informal but commonly accepted formula for determining the duration of maintenance based upon the length of the marriage. The longer the marriage, the longer the term of maintenance.

The new statute now provides an advisory schedule, also based on the length of the marriage, for the court to consider in determining the term of maintenance. Paradoxically, however, a longer-term marriage, which would typically result in a longer term of support, may in fact do just the opposite. Why? Because the paying spouse may be likely to retire before the end of the term.

In court, the retirement of the paying spouse, if known, could be considered in deciding the duration of maintenance. If it is not known at that time, the paying spouse would need to go back to court to seek a modification if he/she wishes to decrease the length of the support.

In mediation, you can have a discussion that takes into consideration all of the relevant factors without anyone having to petition the court, such as:

• The age and health of both parties;
• The likelihood that the paying spouse will work beyond a typical retirement age;
• The parties’ retirement plans before they decided to separate, and whether they need to be revised after a separation.

A balance needs to be struck between:
-- The need of the spouse receiving support to have sufficient income; and
-- The desire of the spouse paying support to retire at a reasonable age and reap the benefits of a long career.

Once again, an arbitrary formula in a statute may or may not apply to your particular situation. For example, a construction worker is not likely to be able to work past the age of 70, but a college professor certainly might. A police officer may retire at 50 but then have a second career. Someone in a stress-filled or predominantly young business may be urged to retire at an earlier age.

Looking at the interests and concerns of both parties will also entail a thorough discussion of the retirement assets available to each.

• If one party is going to continue working and saving for retirement, perhaps the other could receive more retirement assets in exchange for a shorter term of maintenance; or
• Perhaps budgets will ensure that both parties will have post-divorce savings for retirement; or
• If someone is going to go from full- to part-time work, provisions can be made for an appropriate reduction; or
• If there are insufficient retirement assets, you can look into the purchase of an annuity as noted by my colleague, Dan Burns, in No Pension? Why an Annuity Might be Right for You.

Mediation will also give the parties an outlet to talk about their fears of the future, such as living in poverty or working until the day they die. Neither of these outcomes is likely to happen in a mutually determined and balanced mediated agreement.

{3:24 minutes to read} As with most people, there are some challenges that I welcome, and some that I dread. This goes for mediation as well.

A challenging mediation isn’t necessarily challenging because one or both clients are difficult; for me, it’s often because the clients are so diametrically opposed that, no matter how many techniques and skills I use to help them resolve difficult situations, nothing seems to help. I’m talking about extreme situations where even my indefatigable optimism that conflict can be resolved is challenged.

So, there I am, dreading the next meeting and preparing for the worst. Before my clients arrive, I review my notes and think about skills I’ve learned over the years and how I can address what I’m sure will be the same unresolved conflict.

Then, something surprising and wonderful happens. The clients come in relaxed and calm and tell me that they have reached an agreement on their own. What had seemed to be an insurmountable conflict has been resolved. By them. Outside of a meeting.

The last time this happened, I tried to figure out why. What happened after they left that could not have happened in our meeting? Is there something that happened in the meeting that helped them to talk on their own?

I think there are a number of factors at work.

Motivation

When parties are stuck, before they leave, I try to frame for them a few options generated in the meeting for them to consider. I always make one of the options ending the mediation and going to court. Since most of my clients come to mediation precisely because they do not want to go to court, I think that the option of compromise or court is a motivating factor for reaching an agreement on their own.

Opportunity to be Heard

Even if it takes a little while to fully recognize the benefit of this, being heard and hearing the other person’s interests, reasoning and needs does serve to help the parties come to a resolution that takes those interests into consideration.

Supportive Environment

I know when I’m in conflict with someone, the one-on-one debate isn’t always the most productive. The benefit of trying to reach a resolution in a forum in which each party is supported by the mediator, who is not judging them and is not assessing fault, works wonders.

These factors may not always work their magic in a meeting, and they certainly don’t work all the time in every mediation, but I do think that later discussions between the parties can go forward in a more positive manner, even if a mediation meeting leaves much unresolved.

{3:36 minutes to read} I would have answered this question as “abundance,” which I suspect might be a common response. Not according to Brené Brown, however, in her book Daring Greatly. This amazing book is about allowing yourself to be vulnerable so you can achieve great things. Brené Brown believes that the opposite of scarcity is “enough.”

In other words, you are:

• Good enough;
• Smart enough;
• Attractive enough;
• Perfect enough; etc.

If you believe that you are enough, you can then face the vulnerability of putting yourself out there and risk the uncertain responses of others.

Clearly, this one sentence doesn’t come close to explaining Brown’s very thorough examination of how you can become more resilient and daring in today’s society. To get that deeper understanding of her thesis, I strongly recommend that everyone read the book.

In terms of “enough,” I was extremely struck by this novel way to combat scarcity. It’s a refreshing take on a society that bombards us with messages saying we can never be or have enough to be happy and fulfilled.

“I Just Want What I’m Entitled To.”

This concept came to mind when I recently heard this fairly common refrain from a client. With all of the uncertainty that separating couples face, I completely understand when one or both parties use that phrase. Undoubtedly, there are friends and family urging them to be sure, especially in mediation, to get all that they can—to not be taken advantage of by their spouse.

The thing is, though, to what are they entitled, and how is that determined?

If it’s what the law provides, that may not be such a clear cut answer. As I’ve mentioned in many posts, even something clearly defined in a maintenance or child support statute is not always so crystal clear when you consider income over the cap, and whether a court determines to apply the statute or not.

• Even if something is clearly determined under the law, what if it doesn’t provide all that a person needs?
• Or what if by making that payment, the other party doesn’t have enough to meet basic expenses?
• If there are scarce resources, how are they to be allocated within the structure of entitlement?
• Do you spend a small fortune for a trial to have a judge decide?
• Do you leave it up to your attorneys?
• More importantly, do you trust others to make that decision for you?

Why not be an active participant in a process to determine what works best for you and your partner? Whether there are scarce resources or not, a discussion focused on need and ability to pay seems to make more sense than a litigated battle over a legal entitlement.

{3:12 minutes to read} Having been raised by a mother who once heard an ambulance and acted upon the belief that it carried my aunt, who, being 15 minutes late in picking her up, had, of course, been in a car accident, I’m a worrier.

If I allow myself to go there, I can easily obsess about a car accident or a plane crash, things that can happen in an instant without warning and could drastically change my life. Then there are the things that are equally devastating but are played out over a longer period of time, such as the life-threatening illness of someone I love.

There probably is a piece of me that believes if I worry about something, it won’t happen, so I tend to spend time worrying about all kinds of unlikely things.

When I meet with some of my clients, I recognize that they are not worrying or obsessing about something that is unlikely to happen as I do. Many are actually experiencing the 2-pronged impact of an unimaginable event that will change their lives. First, they are feeling the instant “slap-in-the-face” kind of shock that takes their breath away, when they are being told that their spouse wants a divorce, or they discover an affair. Then comes the prolonged distress in the struggle to tell their children, work out the details of a separation, and draft and sign legal papers. I wish that I could say mediation will make the entire process painless, but of course, it cannot. I wholeheartedly believe, however, that a properly trained and experienced mediator can lessen the impact on you and your family, because in a mediation:

• You are an active participant, which means that you exercise a level of control missing from an attorney negotiation or a court process;
• You will have the opportunity to express what you feel needs to be said, in a way that is more likely to be heard by the other; and 
• No matter whether you both want to proceed quickly or slowly, the process can move along at a pace that suits. 

Most importantly, mediation is a respectful process that focuses on the future rather than focusing on past events or laying blame, which is one of the many reasons why I am such a strong advocate for mediation. It may still be painful, and it will still require hard work and time, but it should still be the first choice for a couple seeking to separate.

Comments from Social Media

I agree. Although it will not take away the pain of divorce, mediation offers the clients more control over the process and the means to move forward in a respectful manner.

Anthony Markus

{4:18 minutes to read} As Lesley Stahl was making the rounds on various talk shows, promoting her new book, Becoming Grandma, the Joys and Science of the New Grandparenting, I learned that the omnipresent Boomer generation has once again made its presence known and adopted its own version of being a grandparent.

I was then inspired to do a little research—admittedly over the internet, so I am not attesting to complete accuracy. From my experience, though, what I found seems to be on point.

• Nearly 60% of the grandparent population are baby boomers.
• The average age of grandparents is 48.
• The vast majority of grandparents are active online and a majority are still employed.
  Grandparents control a good amount of the wealth in the country and are generous in supporting their adult children and grandchildren.
• While only 13% are the primary caregivers, 72% take care of their grandchildren on a regular basis.

This is in line with both my personal experience and mediation practice. When I look at my friends and family members who are grandparents, I certainly don’t see the stereotypical image of a retired white-haired couple, who spend their time at home waiting for visits from the grandkids. I see active, vibrant people who look a lot younger than they are and enjoy being called variations of grandma and grandpa. They cherish the time with their grandchildren and play a vital role in their lives. They enrich the lives of not just their grandchildren, but their children’s and their own lives as well.

When dealing with divorce, we naturally tend to focus on the negative aspects of ex in-laws since they are more prevalent. But looking at the various permutations of family that happen after divorce, one potentially positive aspect can be found in the multitude of grandparents. It is becoming more and more common, as in my family, that children have 3 or 4 grandfathers and grandmothers who all love them and make an effort to be a part of their lives.

In mediation, I see clients turn to grandparents

• as caregivers,
• as a place for a newly divorced child to live,
• to pay for college, and
• to provide financial support.

Even if the clients don’t mention grandparents during the mediation, I do when I ask if the clients agree that, in the unlikely death of one of them, access between the children and the deceased parent’s family would be encouraged. Unless there is something very negative going on, the answer is always “Yes.” Even in contentious cases, most parents express a continuing relationship between the children and the “other” grandparents/extended family as a positive thing.

There is also the effect that a divorced child’s grandparents can have on the child’s siblings from a second marriage. It was before my time with my husband, but I understand that when his son’s mother remarried and had another son, not only did my husband take that child out while he was visiting his son, but his parents did as well, taking both children to lunch, or the zoo, or park. In fact, my mother-in-law left a bequest to her grandson’s brother, which was thoughtful and so meaningful to him.

As comfortable as the stereotypical image that some of us grew up with is, the new version of grandparents will be equally positive to today’s children of divorce.

{3:48 minutes to read} Courts are now required to consider the following factor, among many others, in making a maintenance award or determining if the statutory amount was unjust: “. . . the existence and duration of a pre-marital joint household or a pre-divorce separate household.”

In English, this means that it is relevant to the Court if a couple lived together before they were married, or if they lived apart for a period of time before starting a divorce action.

In mediation, I’ve encountered these examples:

1. A couple who has been married for 25 years and then living apart for 5 years, but still sharing a joint account into which both salaries were being deposited, with one person’s salary 7 times as much as the other.
2. A couple who was married for 23 years and then apart for 8 years, during which they lived completely separate financial lives, but one earns about half as much as the other.
3. A couple who was only married for 2 years, but had lived together for 10 years before the marriage while sharing all income and assets.

I’m glad to say that in mediation, couples thought about their time together before the marriage and their time apart after the marriage as meaningful because it was relevant to them, even if it was not relevant under the law.

In terms of sharing assets

The legal definition of marital property is property accumulated during the marriage. There is no similar factor for pre/post living arrangements as in the maintenance statue. This means that all of the time, money and effort invested into the other’s purchase of a house before you were married, doesn’t factor into the distribution of that house in divorce.

It has, however, had significance in mediation, because it made sense to the couple to give the “non-titled” spouse an equal share in an asset to which they both contributed, even though under a strict interpretation of the Equitable Distribution Law, it was irrelevant.

In terms of support

I have seen couples consider their pre/post living arrangements as relevant to support, even before the Courts did. Again, because it made sense to the couple to do so:

1. Instead of someone getting support for 10 years after the legal separation, the 5 years during which the one party supported the other was counted.
2. Even though the statutory formula for the couple who were living separate lives for 8 years would have resulted in a maintenance award for the wife, she declined. She was self-supporting and felt the time for maintenance had long passed.
3. Even more significantly to me, the person who was only married 2 years, agreed to pay support to the other party for 4 years, because it was clear that it was needed to help that person become self-supporting.

Sometimes, statutes do catch up with what has been going on in mediation for a long time. And sometimes, they don’t, but couples themselves tend to know what will be best for them.

{3:24 minutes to read} I attended a mediation workshop that focused on the various ways that a mediator can address an impasse in mediation, and help clients get beyond it.

Of the many tools, one that struck me profoundly was asking the clients how they think this would make them look in the eyes of their children. Not necessarily now, but when they are adults and may have a keener awareness of what happened in the aftermath of their parents’ divorce.

Manipulative? Some may consider it to be manipulative on the part of the mediator, but it goes to the very reason why most clients choose to mediate—they want an agreement that is in the best interest of their children. It also speaks directly to the part of us that wants others, especially our children, to see us in the best possible light.
What would the children feel as adults, if they came to understand that during the divorce:

• Mom deliberately made it difficult for dad to see them;
• Dad refused to pay adequate support for mom, resulting in her living at a much lower standard of living than him;
• One insisted upon an allocation of assets that, while within the law, left the other to be much worse off in retirement;
• One consistently spoke ill of the other, or permitted other people to speak ill of the other parent, in the presence of the children. 

It is never recommended that parents share the details of their separation agreement with their children, but separating couples would do well to recognize that there are things that children can see for themselves when they are older. When they look back and see examples like these, they are better able to understand exactly what happened during, and as a result of their parent’s divorce, and it can lead to disappointment.

In the midst of a difficult divorce, there are so many competing emotions that objectivity can be elusive. If a party is litigating, that lack of objectivity can become a motivating factor. That emotion may then be supported by their attorney, whose job is to advocate for the best deal for her client and become even more entrenched.

Fortunately, in mediation, clients can see the other side, even if they may not agree with it. They can be reminded of the bigger picture and what is truly at stake. They can make an agreement that would leave their children with the impression that they did right by the other parent.

The legacy of a divorce on children can be painful enough. Parents don’t need to add to that by making their children feel sad because one treated the other badly.

{3:48 minutes to read} As someone who is making a sincere effort to be mindful and present, and also as someone to whom these qualities do not come naturally, I understand how difficult it is to be patient. When you are in the midst of a divorce and want it to all be over yesterday, it’s even more of a challenge to let things work out in their own time.

If you want to mediate, I urge you to undertake this challenge with as much forbearance as you are able to muster. Mediation requires an element of trust in the process; trust to allow it to proceed at its own pace.

And it’s not only clients who need to be patient. Experienced mediators, too, may anticipate what the resolution could be for the parties—but have to exercise patience to permit the parties to reach their own resolution at their own pace.

We’ve all experienced the frustration of wanting something to move along more efficiently and feeling that someone seems to be putting up roadblocks. Whether it’s the other client or myself as the mediator putting on the brakes, I try to help clients who are anxious to get going and understand the value of patience with the process.
Patience starts with the review of the Agreement to Mediate. Clients are chomping at the bit to get started and I can see that some are being polite and listening despite seeing it as a waste of precious time. But a focus on the Agreement to Mediate is a very necessary first step and well worth the time it takes. To understand and buy in to the process, you need to understand:

• The roles of the mediator and the clients;
• Disclosure;
• Confidentiality;
• Consultants; and
• Fees you will be charged.

Then, as you move to substantive discussions, exercising patience can lead to an outcome that may not have been possible at first. It might be an outcome that neither the parties nor the mediator may have anticipated. It might be a breakthrough that arises from the passage of time between meetings, or it might be something that one or both parties initially rejected, but after going through an evaluation of other options, can now accept.

All of that said, there is a difference between being patient with the mediation process and permitting obstruction. The party may be:

• Deliberately delaying the mediation;
• Not doing what is required between meetings;
• Not producing documents; or
• Cancelling appointments.

These actions are not a question of patience, and the mediator needs to address whether or not the parties are both fully committed to the process.

Under the best of circumstances, patience is not easy, so it can be almost impossible to be patient when you feel that you are in a state of suspension until you sign that separation agreement. Instead, try to view each meeting as another step closer to the ultimate act of signing your separation agreement and being divorced.

{3:12 minutes to read} After watching the umpteenth presidential debate, you can imagine why I started to think about civility in personal and professional settings.

For most of us, civility in personal situations is automatic. We’re polite to strangers, say good morning, hold open a door and say you’re fine even if you’re not.

On the other hand, for those with whom we’re most comfortable, sometimes that automatic default to civility is lost. And for those with whom we’re in conflict, some of us may even constantly snipe at each other like those on the stage in the 2016 Presidential Debates.

So, do mediation clients have to be civil to each other? Not necessarily, but here are some reasons why I think they should.

You Want to be Heard

When you have a legitimate gripe against someone who acted badly and that person acknowledged that he or she acted badly, fight the urge to bring it up repeatedly. Constantly bringing it up in different contexts in dripping sarcasm will cause the other person eventually to tune you out. Not only will they not hear your continued complaints regarding their bad actions, but they won’t hear you on anything else, either.

You Need to Hear the Other Person

If you are so busy thinking about how and when you can rail against the other person and give the most nasty and biting remark, are you really listening to him or her? And if you’re not listening, you are not really mediating. Mediation requires both parties to hear and understand the other so that resolutions may be discussed that will meet both of your interests.

You Might Shoot Yourself in the Foot

When you repeatedly knock the other person about something, even if it’s legitimate and acknowledged, it tends to get diminishing returns. You run the risk that the other person, who may have started out feeling sorry and guilty, will eventually not feel quite as bad about what they did. Guilt does tend to lead someone to be more generous in terms of a settlement, but an unrelenting harangue can definitely chip away at someone’s guilt and generosity.
If you’re not ready to accept an apology and move on, so be it. You don’t have to do that. But it would be in your best interests to be civil to the other person. You don’t have to like him or her; you don’t have to act like it never happened. But you also don’t have to continually raise it with nasty and sarcastic reminders.