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Chris and Janet - The Pie in the Sky

Chris and Janet are in their fifties and at the end of a relationship that included only a few years of marriage following a shorter period of cohabitation.

Janet was previously married and divorced. Chris was not previously married. There are no children.

Chris has a position with a large consulting firm where his income varies depending on the number of assignments he receives each year and the amount of his annual bonuses. His recent average income has been at least $120,000.00 per annum, but his future income is uncertain.

Janet is not formally employed. She holds herself out to be a writer/artist but in reality has not had any earnings for a number of years. She has been entirely dependent on Chris during the marriage and somewhat dependent on him during the period of cohabitation.

Chris is often away for extended periods on business assignments. For Chris, the marriage is over and he is ready to move on. He has no optimism for this relationship and no interest in making any effort to restore his feelings for Janet.

Janet, on the other hand, is very dependent emotionally and financially on Chris, and for her the break-up is very difficult.

In the private meeting with the mediator before the joint sessions, Chris suggested that there might be some negotiating imbalance in Janet’s favour. He felt somewhat intimidated by her forcefulness whenever they had to make decisions. Clearly, he is feeling some guilt about the emotional impact that the separation will have on Janet.

In her private meeting with the mediator, Janet appears to be oblivious to any idea of imbalance between she and Chris. She says that she is seeing a lawyer but she is obviously still quite naive and uninformed in terms of her rights and entitlements and in terms of her life objectives.

In the first joint session, the parties are tentative but cooperative. The issues are identified generally as being spousal support and equalization of property. They each agree to get on with financial disclosure so that at the next session, beginnings can be made in respect of these issues.

At the next session, there is still a spirit of cooperation. Chris has assembled documentation of his financial assets. The property has already been listed for sale and there is agreement that each will make a wish list in respect of division of household contents to be compared to see if there are any serious issues in that regard. In the meantime, both will continue to live in the matrimonial home, which appears to be a peaceful situation.

Discussion of spousal support is started. Chris continues to be very reticent in this regard. He is waiting for Janet to state a position. Janet is uninformed and looking to the mediator to suggest numbers. In these circumstances, the mediator suggests that before the next session, both should receive general legal advice and specific advice in respect of spousal support. Using generic terms, the mediator suggests to both as to what sort of questions should be covered with the legal advisors.

The next session is delayed for some time because Chris is away on a work assignment. On his return, he has found that the house has not generated much enthusiasm in the market even though it is located in an area where houses generally sell quickly. Concern has been expressed to Chris by the realtor that the house and its garden have been overloaded with improvements which make it unattractive to the average buyer. Chris sees this as Janet’s doing; he is ready to lower the asking price but Janet is reluctant. In the meantime, of course, Chris is bearing all of the expenses and it will be difficult to finalize equalization without the house being sold. There is beginning to be a
much higher degree of tension in the household.

Janet has obtained legal advice relating to spousal support. Her grief relating to the separation has transformed into anger and a determination to receive a spousal support settlement, which on the face of it, would appear to be far in excess of anything which she could expect to achieve in litigation (the pie in the sky). When this is expressed by Janet, Chris for the first time, becomes more forthcoming in terms of his objectives. He feels that he has carried the financial ball throughout and that it is time for Janet to become self-supporting. He is clearly thinking in terms
of a very short term and modest arrangement for spousal support.

Separate caucuses are held at this point. The mediator has a frank discussion with each about the likely strengths and weaknesses of that party’s position. Janet appears to be receptive to the notion of a lump sum arrangement recognizing that it may be unfair to Chris to expect him to pay support indefinitely in a significant amount in circumstances where she has no clear plan for her future. Chris is also interested in a lump sum arrangement recognizing that he is as much responsible for the situation of dependence as Janet and that in a contested situation, he is unlikely to achieve more than an indefinite arrangement in an amount sufficient to maintain Janet in something like the standard of living to which she has been accustomed during the marriage. Chris proposes a number
and agrees that this can be relayed to Janet in joint session.

In the joint session, both appear to be happy with the proposal made by Chris, subject to further discussion with legal advisors.

In the ensuing weeks, the mediator has discussions with the legal advisors. These are fruitful discussions during which the mediator is provided with various suggestions or clauses in an agreement, which will ensure that the spousal support arrangement is workable and that tax is avoided where possible. The advisors also make suggestions for arrangements in respect of the sale of the matrimonial home, or failing its sale, for a temporary support arrangement, so that Janet can stay in the home and be responsible for its expenses pending the eventual sale.

Counsel agree that the mediator can prepare a draft agreement, which is done and sent to counsel for comment. The parties and the mediator then meet to review the agreement, which they both approve and take away for signing with their lawyers. The agreement is eventually signed by both parties.. Subsequently, the house is sold and all aspects of the agreement are implemented.

There were two keys to the success of this mediation. First, the parties had the opportunity to hear a frank appraisal of their position with respect to spousal support from the mediator, who they both regarded as neutral and well-informed. Secondly, the parties had the benefit of the legal advice received directly from their legal advisors but also had the benefit of the very helpful participation of their legal advisors with the mediator in the preparation of the agreement.

Copyright reserved to Robert D. Hammond

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