The parties were overflowing. I absorbed the litany of slights and misdeeds with which they would have liked to have hosed the other parent. They were joint decision-makers for their child, but they could not stand to be in the same room. As any mediator would, I tried to enlarge the pie by having the parents put more of their issues up for discussion. However, not too far below the surface was the single issue clouding so much else in their child’s young life: money.
I learned that father was a Silicon Valley software guru. He was fabulously well compensated in terms of stock options, but not so much so in terms of actual cash.
I began a second level of mediation with the lawyers. Both lawyers agreed that a parent’s income derived from the exercise of stock options is the difference between the purchase price of the optioned stock, and the price at sale. The problem here was that this father refused to exercise any of his options. He lived frugally on his salary. The option money was so close that mom could almost reach out and touch it, yet for dad this was phantom income, and it was just not real. In his room he wanted to save for a rainy day, and avoid paying the IRS anymore tax than necessary. In mom’s world, she was sure this was all about avoiding child support.
It did not help that the two fine young associates were channeling their client’s passions. Each called upon more senior partners in their firms. We sent their clients out to get coffee, and embarked on some quick legal research. It is never a great mediation strategy to tell anyone that their legal argument is doomed, but as one of the lawyers read case after case, it began to look as if dad had no current income from the options, at least not yet, and not for child support purposes. Mom’s prospect of child support dimmed by more than 50%.
She had come in thinking the world was one way, and it turned out to be another. Her attorney tried breaking the unhappy news to himself and his client. Now there were thousands of dollars per month missing from the worksheet. This would impact how mom lived, in a big way! It was too much to take in, and the mediation failed for that day: mom needed to go home and process.
The elephant in the room comes out of the shadows.
Every day, regular people come into mediation thinking the world is one way, and so often it is the mediator who has to shatter the illusion. “We have 50:50 parenting time, so there should be no child support.” “I have most of the parenting time, so I should get the IRS dependency exemptions every year.” “I know what is in the best interests of the children.” “We both have jobs, there should be no maintenance.” “I worked hard for my pension, it is mine, it is in my name only.” “My business is just me, it has no value, what do you mean I have to pay her all this money for her share of the business.”
Those are just some of the popular favorites. We like to think that mediation is all about self determination by the parties, but the mediator is often the one who brings up the bad news when the parties have no lawyers. The mediator is perhaps expecting blowback if the parties go to court, and the judge rejects their agreements. For example, Judges like the child support to be calculated correctly, and it cannot be just left “as agreed upon” by the parties.
The elephant takes a seat at the table
On November 16th, 2015 the Supreme Court of Colorado drafted a policy establishing standards for mediators taking court appointments in domestic relations cases. In a Section covering competence, the policy states that the mediator should have “familiarity with the subject matter, including general principles of law, pertaining to any area in which the mediator is willing to serve.” No law degree is required, but what is required is far from clear.
You might see this as innocuous, but then consider the credentialing process to get on the exclusive roster of court appointed mediators. The courts’ policy is clear: “Mediators Have No Right or Entitlement to be Listed on the Roster.” The eleven-page policy is emphatic, “[p]lacement on the Mediator Roster is a privilege, not a right, and does not guarantee or ensure referrals. When it is a privilege, the mediator knows that the court can simply cut off your head at any time.
Woe betide the mediator who fails to please the court. Mediators now have the clear interest to steer parties into agreements that are acceptable to the judge. Today the court is ever closer to having a full third seat at the mediation table, as the mediator becomes the eyes and ears of the court. We have lost the vision that mediation is client based and focused on party empowerment. It has become a law-driven process; nothing more than a case evaluation forum. This may be good for the courts, but not so much for mediators or mediation.