Reconcilable Differences

Today we celebrate Abraham Lincoln’s birthday.
Before he was president, Lincoln was a very successful lawyer who represented a variety of clients,
including railroads, and he won many cases. Here is what he said about litigation:

“Discourage litigation. Persuade your neighbors to compromise whenever you can.”

compromise in divorce mediationAbbie and Jorge came to me when they wanted to get a divorce through mediation. They had been married for 15 years. They had 2 young children, ages 7 and 9. Jorge worked in a civil service agency and earned about $60,000 per year. Abbie had a part time job in a hair salon and earned about $25,000 annually.

At their first mediation appointment, Abbie and Jorge they told me that when they first married they bought a brownstone “fixer upper” in a rather undesirable neighborhood. Over the years they slowly fixed up the house using a combination of their own “sweat equity” and paid contractors. Meanwhile, their neighborhood became extremely desirable, and since their mortgage had been a 15 year mortgage, they now owned their house “free and clear”.

At first during mediation they disagreed on many issues. But after arguing, they managed to find common ground and agree on most issues except for the big one: What to do about the house.

Jorge vehemently wanted to sell the house. He explained, correctly, that the value of the house was high and the proceeds from its sale would allow each of them to purchase their own nice cooperative or condominium apartment. He noted that without the money from the sale that would be impossible. Abbie could not argue with his logic, but was equally vehement about her desire to keep the house so that the children could stay in the same school and keep their neighborhood friends. Also, she wanted the divorce to disrupt their children’s lives as little as possible. For that reason alone, she argued. the kids had to stay in their home.

This mediation session got very heated….Jorge and Abbie argued, yelled and screamed at each other for several hours, but neither one of them would budge. Jorge was stunned. He called her “stubborn” and he started to say something else but ‘bit his tongue’ and kept quiet.

Abbie was very angry and threatened to go to a lawyer and start divorce proceedings in court.

She seemed as if she was about to walk out and while Jorge couldn’t believe just how stubborn she could be – he did not want to take this divorce to court and he knew that she didn’t either. They could hardly look at each other they were so angry.

I asked them both if they would be willing to take a little time to cool off, and then return to mediation next week to try again. They agreed and chose to make an appointment for two weeks later. When they returned for their second appointment, I asked each of them if they could understand how the other felt. After some initial resistance they admitted that they could. I asked each of them to try to argue the other’s position. Next, I asked them to list all of the various ways that their case could turn out, regardless of whether it was in court or in mediation. Each answer was written on a flip chart. We agreed that just because one of them listed a possibility, it was not something that he or she proposed or agreed to. When they were finished, all of the possibilities were listed in front of them for both of them to see. With that, and each having a better understanding of the other‘s interests, they were able to reach agreement in less than two hours. Neither of them was right or wrong. There were no losers. They agreed on a solution that each could live with even though the solution was not the first choice for either of them.

After realizing that they would be better off making their own decision about their lives, it did not take long for Abbie and Jorge to reach an agreement on the sticky issue of the house.

Abbie and Jorge agreed that Abbie would stay in the house with the children until the youngest entered middle school. Then the house would be sold and the proceeds split. Until then, Jorge would pay all of the costs of carrying the house (taxes, utilities, major repairs etc.).

Although the great majority of separating and divorcing couples who come to mediation do so because they want to avoid lawyers, finding out what is likely to happen in court if they cannot agree can be very helpful in reaching a settlement.

Lincoln, the lawyer said, “Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.”

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>