Divorce mediation and collaborative divorce offer a flexibility you don’t find in litigation. It’s designed that way so that both sides can negotiate, compromise and resolve issues to reach a settlement. The structure of both formats and the willingness of both parties to compromise typically cuts a path to resolution. Until you run into an issue that creates a roadblock. One common one is custody of the family pet.
Of course, there are other issues that can create a stalemate: The family home or a vacation home. An inheritance. A jointly owned businesses or investment. It could really be anything that a couple just can’t seem to come to a consensus on—even with the resources available as part of either divorce mediation or collaborative divorce.
So short of applying Solomon’s wisdom and cutting the family cat in two, how do we resolve issues where both parties can’t compromise?
First, we resolve the negotiation points that can be resolved first. If we know there’s a contentious issue, we set it aside and address things that the couple can come to an agreement on. This keeps the process moving forward. Just as importantly, it helps the couple acclimate to the negotiating process.
Acclimate to the negotiating process? What does that mean? Negotiating is about give and take. As an individual, you know what you really want but probably can’t get, you know what you would be willing to settle for, and then there’s the category slightly below that of what you can live with. As part of the negotiation, couples are constantly going through the process of conceding points here and there to get through the process and reach a livable settlement. Reaching a consensus on the easier issues first builds trust and an understanding of how negotiations work so by the time you reach the difficult issue, couples are better able to come to an agreement.
Unfortunately, roadblock issues—like who gets the family pet or what a marital asset is worth– can remain a roadblock issue even after going through the process. That’s when we provide a few other options to come to a resolution.
An arbiter provides one solution. An arbiter is a neutral party like a retired judge or an attorney working outside the courtroom. He/she will hear arguments from both parties and then come up with a decision. In choosing this path, both spouses agree to accept the decision of the arbiter in advance, which is binding. It is like having a mini trial on only one issue without jeopardizing the compromises that the parties have already made.
A neutral appraiser can provide another solution. When the dispute involves money—e.g. one spouse thinks an asset to worth more than the other—we can hire an appraiser to conduct a valuation. Typically, this is done with real estate or a business where one ex wants to be bought out. Based on the neutral valuation, we can return to the negotiating table with something more concrete than simply what one party thinks their share is worth. If the party who is getting bought out is still afraid that the asset will be sold after the divorce for an amount greater than the valuation, we can build in language for an additional payment if this actually occurs.
Another option involves hiring a third-party conciliator. Like the arbiter, he/she will talk to both parties but not together. Instead, the conciliator will shuttle back and forth between each of the parties. This can work because each of the parties may be willing to share their thoughts and feelings with the conciliator when they might not be willing to share those thoughts with their spouse. Using the information obtained in the separate conversations, the third-party conciliator may be able to facilitate a resolution that both parties sign off on.
In terms of the family pet, it’s a little more complicated because it’s not really a dividable asset. And there are many laws against even suggesting splitting the pet in two to see which person would be more upset. Generally, the hope is through the application of some creative negotiations or the use of a neutral third party, the couple can agree on an ownership/visitation agreement.
Thankfully, these issues do not come up in every divorce. But couples entering into divorce mediation or collaborative divorce do have the assurance that all their issues can and will be resolved even if it means finding creative dispute resolution options.