Separation/Divorce: Hoist With Your Own Petard

When people ask me what is necessary in order for a mediation to be successful, my response is “a willingness to cooperate and negotiate in good faith.” These are words of wisdom from my mediation mentor. If the people who walk into my room have even a modicum of intention to that purpose, mediation is possible. Without it . . . well, you know.

Prior to mediation, couples do not have to have agreed to anything, see eye to eye on the issues or necessarily want the same things. What they do need is an intention to work together, plain and simple. When they do, magic can happen.

However there are times when it becomes clear that one (or both) of the parties may be participating either in a disingenuous or self-serving way. In that case, the possibility to create a mutually agreeable outcome is rather slim.

“Hoist with your own petard” is a really an interesting expression, peculiar in that most of us have no idea what a petard is and why would we hoist ourselves with it once we did?! Moreover, what could this possibly have to do with mediation?

Let’s start with the definition: Webster’s dictionary defines petard as 1) a metal cone filled with explosives, fastened in ancient warfare to walls and gates and exploded to force an opening (in other words, a bomb); and “hoist with (or by) one’s own petard” is to be destroyed by the very device with which one meant to destroy others. In other words – a sort of self- sabotage. In either case, it is a self-destructive venture that unfortunately, is not often seen as such at the time.

In my mediations, I’ve seen this phenomenon from time to time. Perhaps in an attempt to gain control of a situation or when we feel that our security is at risk, a knee jerk reaction can be to hurl any threat or do whatever we deem necessary to get our way and preserve what we feel is rightly ours. And in that attempt is often a risk to our own security (financial and otherwise) and well being. Thus, we hoist ourselves by our own petard!

A case in point is a mediation I had with a couple a few years ago who I will call Jason and Jill. They had three children with the oldest one having severe special needs. This had put a particular strain on their relationship. I believe this marriage would have ended regardless, but the stress of coping with the requirements for their children, especially the special needs child, and their different approaches to dealing with the disability, probably precipitated the end sooner than later. The pressure on both of them was palpable and I could see that Jason was really having a hard time dealing with his daughter’s disability.

Jason was desperately trying to hold onto the house, which he could ill afford. He didn’t want to sell it because it infuriated him that he would not be able to recoup his investment due to the housing recession – a situation many couples are facing these days. The reality was that in holding onto the house, he would be “house poor” so the need to explore other options was important. Jill was planning to move in with her parents who could assist with the care for the children. However her name was on both the mortgage and the deed so she had a vested interest in the decision about the house.

Jason’s upset and anger over the situation was causing him to lose sight of so many things. He refused to discuss maintenance, claiming that he had no money to “pay her,” but were he to consider other options for the house, relieving himself of the financial burdens of the mortgage and utilities, he could provide the maintenance Jill needed.

Clearly Jason had his own idea about the outcome of the mediation and I was beginning to sense his resistance to anything that did not coincide with that idea. I suggested that we explore the possible options for the house to see which might have the least ill effect on both of them. He balked but Jill wanted to develop some strategies, so on the board went the following options:

• Short sale the house.
• Allow the house to go into foreclosure.
• Consider a renter to share the house with Jason for a period of time to assist in paying down the mortgage. Then, incorporate a time frame at which point Jason would refinance the house in his own name.

With these options defined, I encouraged them to consult with a real estate attorney who could advise and guide them about which approach (or possibly another one that we did not consider) would ultimately benefit them both.

Jason would hear none of it. He said all of this was a waste of his time, he didn’t have the money to hire a real estate attorney and moreover he knew what needed to be done. He would just hold onto the house, do whatever he had to do to keep it and take his chances in court.

I attempted to explain all the potential liabilities of litigating (the time it would take, the money it would cost, etc.), but he was either unwilling or incapable of seeing beyond his own immediate self-interest. By doing so, he put so much at risk not only for himself but especially for their children, which results in everyone being hoisted by his petard!

When you come to mediation, simply bring your intention to work together, and leave the petards at home!

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