It Ain’t Just a Divorce
The Power of an Apology
Jill had known Jack for several years before the marriage by working in the business and subsequently they
got married. She was the designer and field person;
Jack ran the internal affairs of the business. Together
they were the perfect match for running that business.
They had one son, Tommy, who by coincidence went
to the elementary school I had attended, which was
directly across the street from my office building.
The time had come for a divorce and both quickly real-
ized at the first mediation session that Jill’s departure
would cause serious harm to the business. Moreover,
there was no bitterness or antagonism between the
parties that would prevent them from continuing to
work together, or so they said. By the second session,
it was clear that the mediation was not only to secure
a separation agreement, but also to create an employ-
ment agreement between the company and Jill. The
general ability of the parties to avoid confrontations,
while still arguing, provided the opportunity for the
mediations to be conducted in an environment other
than the normal office. A quick vote on the favor-
ite restaurant of the three of us
allowed the mediator to make the
From then on, it was easy. It’s
very difficult to argue, shout or yell
when your mouth is full of lasagna. Everyone enjoyed
the restaurant so much that more sessions were held
than were really necessary, benefitting the restaurant
owner who himself had gone through a divorce mediation only one year earlier. His interest and devotion to
our table earned him hefty tips each time.
And so with the mediation agreement done, and the
employment contract finished, all seemed to be over.
Not necessarily. The relationship that had developed
between the mediator and the parties had gone further
than most would expect. Their trust in me was reflected
by a telephone call at 2:15 pm on a Wednesday. “Mel, it’s
Jack and Jill; we need a favor. We’re both tied up at work
and neither of us can pick up our son at the school.
Would you be so kind as to let Tommy stay with you at
your office until we can pick him up later on?”
And so, the role of the neutral mediator turns into
the role of a babysitter. The remaining question is: do I
charge as a mediator, or do I charge as a babysitter?
The buyers were a young couple; this was their first house. The
seller was an older woman who
had owned and lived in the house
for years. The house was a small
fixer-upper, heavy emphasis on
the “fixer” part. The buyers were
asserting that it was in worse
shape than represented and
declining to release escrow. The
newly discovered “defects” were
probably less than a thousand dollars’ work to fix.
The real estate agent was there;
among other things, he offered
to kick in part of his commission
to make the deal work. The seller
made some concessions, but did
point out that the house was sold
as a fixer-upper. The buyers just
sat there with their arms crossed.
Finally, in a caucus with the buyers, I told them I must be missing
something. I went through the
problems they had identified, the
likely cost of fixing the things they
said they didn’t know about, and
the concessions made. So, I asked
what else was going on with the
After a long glance at his wife,
the husband described their first
night in the house after moving
in. They put their baby in its crib,
Without telling her the story, I
told the seller I wanted her to hear
directly one of the buyers’ con-
cerns, and brought her back into
the room. When the buyers told
her about the rat, she gasped and
said, “Oh, my God, I’m so sorry.
How horrible.” She went on to ask
what she could do to make it up.
Having heard that apology, the
young couple settled for what had
already been put on the table.
And I got my best fee ever: a
beaded keychain with my name
on it, made by the seller, who was
has been an ADR
practitioner continuously since 1985.
He is nationally
known for his work
in ADR ethics
maintains a regular
ethics’ column for
He is located in
305 446 4630,
About the Author
has been a full-time neutral since
1986, with offices in
Portland, Oregon and
and concentrating on
labor and employment disputes. She
is the former Chair
of the Labor and
Employment Law Sections of the Oregon
State Bar, the State
Bar of California, and
the Bar Association
of San Francisco, and
Chair of the Pacific
Northwest Region of
the National Academy
One of my more touching mediations involved a real estate transaction
– not my area of practice, but it was a pro bono request from the court.
Both attorneys were also serving pro bono.
Jill and Jack had come to me without attorneys to resolve their divorce.
They were in their late 30’s and both had important roles in the family
business, which was commercial painting. Jack was the grandson of the
founder of the business and was now the man in charge.