“In other words,” I said, “you would prefer mediation to having a judge resolve your conflict in open court.” I began to pontificate about other options. “Arbitration is another process of dispute resolution—”
Stephanie cut me off. “I know about arbitration,” she said impatiently. “I prefer mediation. I don’t want some neutral imposing an outcome. It’s just that I don’t want to be here. It’s very painful.”
“Sounds like you’re angry that this dispute even exists. Is that a fair statement?”
She nodded.
Privately I thought, “Well, you can probably blame your father for that. A better estate plan could have avoided this conflict.” In another mediation involving an inheritance conflict among three siblings, I actually said something to that effect. More often I frame the message as “This conflict is not your fault. Your parent’s estate plan created very difficult problems that might have been avoided.” But in the Hardings’ case, I decided now wasn’t the time for such a discussion.
Instead, I asked them to think about whether they would feel comfortable mediating with me. If they wanted to explore a different approach to mediation, I would provide them with other names. If they wanted to work with me, the next step would be for their lawyers to contact me.8 Because litigation was pending, I said, I thought it essential that each sibling have a lawyer, at least to consult with.
Within a week of our meeting, each sibling confirmed by email that they wanted to work with me. I then had a conference call with their lawyers and asked them to help educate me about the conflict. I requested that they and their clients prepare written submissions to fill me in on the background.9
When I received these materials, I noted with pleasure that the individual letters from Audrey, Stephanie, and Matt were very personal and well-written.
The siblings agreed on the basic facts. Their father, Joseph Harding, had been born in Cincinnati in 1921. He graduated from Dartmouth College at the start of World War II, enlisted in the Navy, served in the Pacific with distinction, and was discharged with the rank of lieutenant commander. He moved to Boston, where many of his college friends had been raised and still lived. One of those friends introduced him to the brokerage firm where he built his career.
Linda Adams, his future wife, was the daughter of a prominent Boston lawyer. They met at a Christmas party in 1947 and married a year later. With financial help from Linda’s parents, the young couple bought a house in Wellesley and joined the local country club. All three children were born in Wellesley: Audrey in 1950, Stephanie in 1953, and Matt in 1956.
Joe Harding’s charm and ambition made him a highly successful investment advisor. Linda Harding devoted herself to raising the children and supporting charitable causes. They bought Swann’s Way in 1960 when properties were dirt cheap in Truro, at least in comparison to today, and spent every summer there. As soon as the school year was out, Linda would move the children down to the Cape and remain there until Labor Day. Joe came down every weekend.
In their letters, Stephanie and Matt described their summers with great fondness. “Swann’s Way was where my father spent the most time with us,” Stephanie wrote. “He taught me how to sail, play tennis, and swim.” She also recalled her mother’s tradition of keeping a “House Log” in which family members and guests recorded the highlights of each stay. Stephanie wrote that her own children loved to read the early entries, especially those with misspelled words and grammatical errors that she and Matt had written when they were very young.
Audrey’s letter was less nostalgic. By the time she was a teenager, she found Swann’s Way pretty boring. Her best memories revolved around the father-daughter tennis tournament at the local club. “Dad and I made a great team,” she wrote. Apparently that was an understatement: Matt’s letter revealed that by the time Audrey was twelve, she was a ranked tennis player. Joe had taken great pride in her athletic prowess, and for four years in a row they won the club’s mixed doubles tournaments.
All three children went to single-sex private schools near Boston. In her sophomore year, Audrey began to veer off the course her parents had set for her. She began experimenting with drugs and became, in her own words, “very rebellious.” One paragraph from her letter is worth quoting at length:
When my grades dropped and I was no longer on the honor roll, my father responded by putting more pressure on me. He said, “If you don’t watch out, you’ll never get into a top school like Smith or Radcliffe.” I told him that was his problem. I had no interest in living out his bourgeois aspirations for me. In the larger world all hell was breaking loose: the Vietnam War, the secret war in Cambodia, riots on college campuses. I almost flunked out of Milton, and by the end I was so alienated I didn’t want to go to my own graduation. My mother and I had a big fight because I didn’t want to wear the ridiculous long white dress that was required for the ceremony. Four days after graduation, a friend and I took off for Berkeley. My parents, of course, freaked out. But there was nothing they could do to make me come back.
Audrey never did move back to the East Coast, but in her mid-twenties she reconciled with her parents and went back to college. Beginning in 1974, she made a point of visiting Swann’s Way for at least one week every summer. “Oddly enough, I enjoyed it more than I had as a kid,” she wrote. “My parents were thrilled to have me back in the fold and acting like a ‘normal’ person again. Dad would take the week off and we’d play lots of tennis. I didn’t spend much time with Stephanie at Swann’s Way because we had different circles of friends, but Matt and I would take long bike rides and make ritual stops for lobster rolls.” Audrey ultimately earned a BA and a master’s degree in social work from UC–Berkeley and built a career working with abused and neglected children. “Mummy often told me how proud she was of me for devoting my career to children in need,” her letter continued. Audrey never married or had children but was deeply attached to her nieces and nephews. “For me, the most painful aspect of this horrible fight is that Stephanie no longer allows them to visit me.”
Stephanie’s life, by her own report, took a more traditional course. She went to Mount Holyoke College, graduated with honors, and married Don Turner, whom she had known since high school. The ceremony was held at Swann’s Way. Don became a cardiologist and the couple settled in Wellesley only a few blocks from where Stephanie had grown up. They now had two teenage children, both attending private schools. “Audrey once said that my life was boring and unadventurous,” Stephanie wrote, “but I chose that course partly in reaction to seeing how much pain she caused my parents.”
Matt graduated from Brown, got a master’s in English literature, and began a career teaching English at a New England boarding school. He proved to be a natural leader and soon headed the school’s English department. Five years ago, he took the post of headmaster at a day school in Philadelphia. He married Judy Skinner, also a teacher, and they now had three-year-old twins.
All three siblings wrote movingly about their mother’s death from ovarian cancer in 1985. “The last year was horrible,” Matt wrote. “Mummy was often in pain and Daddy, who had not yet retired, couldn’t cope with the situation very well. Stephanie was the only one of us living in the Boston area, so she took responsibility for Mummy’s care—doctor’s appointments, hospital treatments, and private nurses. I drove down from New Hampshire every weekend and did what I could to help.” Stephanie’s letter added that Matt was the only member of the family, aside from her mother, who seemed to appreciate the hard work she was doing. “Audrey flew back every six weeks or so for a weekend,” Stephanie noted. “Whenever she arrived, my parents acted like it was a national holiday. Mummy would rally, Daddy would laugh at her jokes, and then she’d take off again.”
I was beginning to see a pattern in the sisters’ relationship.
Five years after his wife’s death, Joe Harding married a woman nineteen years his junior. Betsy Taylor, fifty, was the former women’s tennis champion at the Wellesley Coun
try Club and recently divorced. Joe was sixty-nine, retired, healthy, and eager to travel. The new couple traveled all over the world but returned every summer to Swann’s Way.
When Joe died at the age of eighty-one, he was still a reasonably wealthy man. He left Swann’s Way to his children, the Wellesley house to his second wife, and $6 million in investments in trust. Under the terms of the trust, Betsy would receive the income for life. Upon her death, the principal would pass in equal shares to his children. Stephanie wrote of Betsy: “She’s a real lady and took wonderful care of Daddy during his last illness, when he required a lot of care.” Audrey, who was only ten years younger than her stepmother, wrote, “The way Betsy pampers herself, she’ll surely outlive me.”
The lawyers sent me copious information on Swann’s Way, including photographs that showed it to be a spectacular property. The estate tax appraisal set its value at $4.5 million as of the date of death in 2002. But in the eighteen months since, Cape Cod real estate had experienced a boom. Audrey sent a marketing report from Sotheby’s International Realty estimating the fair market value at “no less than $6 million.” According to Sotheby’s, Swann’s Way was a unique property and nothing comparable had come on the local market in fifteen years. Swann’s Way had considerably more land than most properties in the area and eight hundred feet of private beach on the bay, a rarity in Truro. The main house, built in 1925, was a large two-story structure with stunning views. Designed in the handsome shingled “summer cottage” style that wealthy families of that era favored, it had been well maintained. The guest cottage, built in 1975, had limited water views but more modern comforts. Stephanie made a point of writing that her parents had built it “to make sure there would be plenty of room for the entire family, including their future grandchildren, if we all wanted to visit at the same time.”
Matt and Audrey, however, had foreseen that Swann’s Way might cause friction among the siblings after their father’s death. Audrey wrote: “Matt talked to Daddy about this several times. With my permission, he strongly suggested that Daddy leave Swann’s Way to him and Stephanie, and give me an equivalent amount of cash. My father ignored this advice—probably because he wanted to put all his cash in trust for Betsy.”
After their father’s death, Audrey wrote, her relationship with Stephanie had deteriorated rapidly. Stephanie seemed depressed and “unable to make decisions.” When it became clear that Swann’s Way was going to be a point of contention, “it was as though the lid blew off,” Audrey’s letter went on. “Stephanie started raging at me about past slights, and I retaliated by saying some things I shouldn’t have.” After several “hideous” telephone conversations between the sisters, Audrey had received a letter from Stephanie, breaking off all contact. Audrey provided me with a copy of that letter, in which Stephanie had written: “You have always treated me badly and been condescending. You have attacked me for my failures and used a derogatory, accusatory tone that I have found very painful. I will no longer allow myself or my family to be subjected to this.”
Audrey was distraught over the rupture, which had prevented her from seeing Stephanie and her children for almost a year. “I have sent letters begging [Stephanie] to consider our getting outside professional help. She never replied,” Audrey wrote to me. “This is eating away at me. I desperately need closure so I can go on with my life.”
Family mediation is so stressful that I try to keep the sessions relatively short and the agendas limited. Our second meeting was scheduled for two hours, and even that, I thought, might be pushing it. This time, the siblings were joined by their lawyers.
I proposed we do two things in the session: (1) create a list of each sibling’s interests; and (2) discuss the opportunities and risks presented by Audrey’s lawsuit. This would lay a necessary foundation for problem-solving, if we got that far. All three Hardings and their lawyers agreed to this plan.
“Looking to the future,” I asked the siblings, “what is important to you? You’ve all told me what you’d like to see happen with respect to Swann’s Way. I’d like to learn more about what’s motivating that decision for each of you.”
Audrey, as usual, spoke up first. She said her most important interest was to sell her share in Swann’s Way at a fair price.
“Why sell?” I asked. “How would you use the money?”
Audrey said she wanted to be able to retire in comfort when she reached age sixty-two and to occasionally travel abroad. She added, “I’ve always dreamed of having the money to take my nieces and nephews—one at a time—to Europe during a school vacation.”
I had set up a flip chart in the room for this discussion. I got up from my chair, chose a green Magic Marker from the array of colors I’d brought, and wrote:
AUDREY’S INTERESTS
Financial resources for a comfortable retirement
Financial resources for travel and vacations abroad
Fair sale price for interest in Swann’s Way
Spend vacation time with nieces and nephews
Seeing me write the words nieces and nephews had a visible effect on Audrey. Her eyes welled up with tears. “We had planned that when Jennifer, Stephanie’s oldest daughter, turned thirteen she would spend a week with me during her Christmas break. We’ve talked about it for years. Jen turned thirteen last October and I had all sorts of special activities planned, but Stephanie wouldn’t let her come. I was devastated.”
“It sounds like sustaining a close relationship with your nephews and nieces is extremely important to you,” I said.
“Oh, yes,” Audrey said. So I added:
Sustain close relationship with nieces and nephews
After a pause, Audrey added that she cared about her relationships with Matt and Stephanie. “They and their children are my family now.” She agreed that I could add three more items to her list:
Maintain good relationship with Matt
Repair relationship with Stephanie
Minimize the emotional and financial costs of resolving this dispute
The last item was one that I suggested that all three of them probably shared.
Next I asked whether Audrey would ever want to spend time at Swann’s Way. “I doubt it,” she said. “It’s a long way from California.” I reminded her that her nieces and nephews all spent time there in the summer. Could she imagine spending a week or so there when they were there?
Her eyebrows rose about half an inch. “Fair point,” she acknowledged, as if we were conducting a friendly debate. “It would be fun to spend time there with Matt and his family. And if Stephanie and I could get past this horror show, I could imagine enjoying time there with her family as well. But surely there’s no need for me to own any part of Swann’s Way for this to be possible.”
Matt said teasingly, “Well, someone in our family would still have to own it!”
This remark coaxed a weak smile from Stephanie. I tore off the sheet headlined audrey’s interests and posted it on the wall with masking tape.
I turned to Matt and asked him a series of similar questions. His goals were so straightforward that it took us only a few minutes to complete a list.
MATT’S INTERESTS
Maintain close relationships with both sisters
Minimize the emotional and financial costs of resolving this dispute
Spend summers at Swann’s Way with his wife and children
Live within his means
The last item was my shorthand for his financial situation. Taxes and maintenance on Swann’s Way were about $30,000 a year. Matt could pay half of those costs per year, assuming Audrey was no longer an owner, but he couldn’t buy out half her share. Even if he could somehow borrow the necessary $750,000 to $1 million, he said, he couldn’t afford to service that much debt—it would be “financially irresponsible” to take on that kind of obligation.
I taped Matt’s sheet to the wall and turned to Stephanie. I hadn’t purposely left her for last, but she had not seemed eager to talk. She had spe
nt much of the meeting doodling on a pad as if she had no interest in the conversation. But now that I was addressing my questions to her, she was fully prepared to answer them and seemed to enjoy having the floor. Her paramount interest, she said, was keeping Swann’s Way in the Harding family so it could be passed on to the next generation. She also wanted to avoid “haggling” over the value of Swann’s Way. She insisted on a “rational” process that was “fair.” (Terms like rational and fair can mean radically different things to different people, which in itself can be a source of conflict.10) Like her siblings, she wanted to minimize the financial and emotional costs of resolving this dispute. The lawsuit had already forced her to hire a lawyer and spend money on mediation, and she resented it. I asked whether she had any interests with regard to her relationships with her siblings. “I have a good relationship with Matt and his family and I cherish it,” she responded. “But frankly, if we have to sell Swann’s Way, Audrey will no longer be part of my family. I’ll have nothing to do with her.”
Such threats are not uncommon in bitter family conflicts, where the disputants may become so fixated on fending off their worst-case scenario that their own conduct makes it more likely. I hoped my next question would help her change course. “Suppose we find a way for Swann’s Way to be kept in the family,” I suggested to Stephanie. “Might you want to repair your relationship with Audrey then?”
As expected, Stephanie initially tried to dodge the question, but I persisted. “Let’s imagine for a moment—even if you think it unlikely—that the three of you come up with not just one way, but a number of ways to keep Swann’s Way in the family. Stephanie, what happens to your relationship with Audrey then? What are the possibilities?” Stephanie didn’t answer for at least fifteen seconds, which I took as a good sign. Finally she grimaced and said slowly, “Maybe.”
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