So I wrote the following:
STEPHANIE’S INTERESTS
Keep Swann’s Way in the family so it can be used during her lifetime and passed on to the next generation
Be financially prudent
Set a fair value on Audrey’s interest by a rational process
Sustain relationship with Matt and his family
Minimize emotional and financial costs of resolving this conflict
Perhaps repair relationship with Audrey if Swann’s Way is kept in the family
I taped Stephanie’s sheet to the wall next to her siblings’. Matt surveyed the three colorful sheets covered with my scrawls and remarked, “It looks like the drawings we used to bring home from kindergarten—except that our handwriting then was already far better than yours now.” Everyone laughed and I sensed that the siblings were relieved to have gotten through this exercise without suffering any flesh wounds. I told them that they had made a solid start; each of them might want to add to or modify their own list later.
Next we turned to exploring the opportunities and risks of the partition suit.
For this part of the discussion I relied on the lawyers, who appeared to get along well. Because Audrey had filed the suit, I asked her lawyer to begin by describing his understanding of the relevant Massachusetts law.
“Audrey, Matt, and Stephanie own Swann’s Way as tenants in common,” he said. “They each have a one-third interest in a single piece of property. It’s typically very difficult for a one-third owner to sell her interest to an outsider; few buyers would find that an attractive prospect. Normally the entire property can’t be sold unless all tenants in common agree. That, of course, creates a risk that one tenant in common will be trapped by the others into remaining a co-owner. Most states, including this one, provide an escape hatch: any tenant in common can file a suit to ‘partition’ the property.”11
Audrey’s lawyer explained how a partition suit works in Massachusetts. A judge appoints a commissioner to see whether it is feasible to divide the property into parcels of approximately equal value. If so, the property is divvied up and each co-tenant becomes the sole owner of one parcel. If this is not realistic, the court asks the commissioner to arrange for the entire property to be sold, typically at a judicially supervised auction. Proceeds are equally divided.
“What do you think the outcome would be in this case?” I asked.
“For Swann’s Way, a physical division into portions of equal value would be next to impossible,” he said. “I’ve told Audrey that if she pursues her partition suit, the court will end up requiring that the property be sold and the proceeds divided.”
I asked the other two lawyers whether they agreed. They both nodded.
I sensed that Stephanie’s lawyer was in a tough spot. I didn’t know how much time he’d had to advise Stephanie before our meeting, and I was even less confident that she had been able to take it all in. “I think that is correct,” he said carefully. “However, I’ve told Stephanie that there are still two ways she can remain an owner of the property. If the property is sold at auction, she can make a bid on it. If she’s the high bidder, she’ll be the owner—but of course she might be outbid. The second way she can retain the property is if the three siblings agree on some private arrangement that will keep all or part of Swann’s Way in the family.”
Stephanie appeared not to have heard this second point. She was still focused on the lawsuit. “How can the law be so unfair?” she exclaimed, a note of panic rising in her voice. “Matt and I own two-thirds. Audrey owns one-third. Why should a minority owner be able to force a sale?”
Audrey’s lawyer noted that Massachusetts law was clear on this point.12
“But Daddy didn’t want Swann’s Way to be sold,” Stephanie insisted. “He told me that he wanted it kept in the family. Doesn’t that matter?”
“Only if he had made that clear in his will,” Audrey’s lawyer responded. “But he didn’t do that. His will said only that he was leaving it to the three of you in equal shares. An oral statement counts for nothing when it comes to inherited real estate. I think your lawyer would agree.”
Stephanie’s lawyer nodded. So did Matt’s.
At this point I offered a summary: “It sounds like the law is reasonably clear: as a tenant in common, Audrey can force a sale of the entire property, regardless of what Joe Harding may have wanted or what Stephanie and Matt want now. But remember, the three of you have the power to make any number of other arrangements, if you agree.”
“But Audrey’s in the driver’s seat!” Stephanie shouted. “Is that what you’re saying? We have to make concessions so she’ll drop the suit?”
Audrey wheeled around in her chair and shot her sister a look that could have cut glass. “How can we explore other possibilities when you won’t even speak to me? I’ve had it with your victim act! I’m not the one making threats here! If anything, you’re the one who has been threatening me. How long do you expect me to sit here and take this shit?”
To help them disengage, I leaned forward and addressed each of them in turn, as if the other were not in the room. “Audrey, it sounds like you’re angry and hurt by what Stephanie has been saying. You’re feeling attacked and you want it to stop. You’re wondering whether we will make any progress in this mediation if Stephanie continues to be so angry with you that she chooses not to speak to you. You also know that we can’t make Stephanie participate. That’s up to her. So you must feel stuck in a very tough position.” I waited for Audrey to indicate whether I had gotten it right.
When Audrey nodded, I turned to Stephanie. “Stephanie, I imagine that this meeting has been very hard for you as well. You may have been aware of the legal issues when you walked into this meeting, but today the lawyers have really spelled it out for you: Audrey can unilaterally impose a sale if the three of you don’t make some alternative arrangement. For you this must seem profoundly unfair. And I wonder if you’re feeling backed into a corner by this news.”
Stephanie nodded yes.
“My question to all three of you,” I continued, “is quite straight-forward: Are you willing to stick with the mediation to see if we can come up with something that better serves everyone’s interests? We’ll take a break so you can talk privately with your lawyers and think it over. Matt and Stephanie, feel free to call your spouses and discuss it with them. I think we’ve done enough today. Let’s reconvene briefly at four p.m. and see where we are.”
The suggestion was welcome. The room emptied in seconds.
At four o’clock everyone returned but Stephanie. Her lawyer said she was exhausted and had gone home. She was willing to meet again next week, but “she instructed me to say that under no circumstances will she consider any option based on a valuation other than $4.5 million.”
I thanked him for conveying the message and we scheduled the next session for the following Friday. I also scheduled a conference call with the lawyers the next day to discuss the agenda for that session.
As everyone was packing up their belongings, Audrey turned to me and said vehemently, “Stephanie is so dug in—I don’t think she’ll budge. I just want you to know that I’m not going to accept a $4.5 million valuation just to buy her love.”
“Audrey, I appreciate your willingness to hang in there. This isn’t easy. And you’ve made it clear that you will only sell at a price you think is fair. I look forward to seeing you next week.”
Mediators need to be optimists, but at the end of the second session I was worried. If the property were sold at auction, the bidding was unlikely to stop at $4.5 million. If Stephanie didn’t find some way to negotiate with her sister, she was probably going to lose the property. Her inflexibility would lead to a terrible outcome for her. Why, I wondered, was he being so rigid?
Stephanie had given us plenty of hints. This was a very angry woman, and I suspected that the anger was the product of sibling rivalry with roots that went deep into her past. Stephanie seemed to view herself
as the loyal, dutiful child who had always done the right thing and never gotten what she deserved in return. In Stephanie’s view, Audrey had been the favored child. (And for all I knew, this diagnosis was right.) Even after Audrey had moved three thousand miles away from home, she’d still managed to soak up more parental attention. And when Audrey had reconciled with her parents and come back home to visit, she had been celebrated as the prodigal daughter.13
The Bible is full of cautionary tales about sibling jealousy and rage.14 Scholars have written that sibling rivalry, particularly over issues of parental favoritism, often intensifies after a parent has died, in part because the parent is not around to redress the favoritism, mediate the conflict, or at least inhibit the fighting. It was no accident, I mused, that the two sisters were still fighting over the value of their respective “shares.” When the parents are gone, there are no more shares of parental love to be divided, but property can serve as a new battleground. Both siblings had framed the dispute as a zero-sum game, and it was one that Stephanie couldn’t win. If she paid Audrey top dollar, she would view it as simply the latest in a long line of undeserved special benefits going to Audrey. If she refused to pay more than $1.5 million, Audrey had the legal power to “take away” Swann’s Way.
But anger usually doesn’t produce the kind of paralysis that seemed to be afflicting Stephanie. Underneath her anger, I sensed, was a fear of losing more than a summer home. Swann’s Way seemed to be central to her identity. In her view, she was the child who kept the family together and preserved its legacy—the keeper of the flame. Swann’s Way was her most tangible link to her parents and her children, the past and future of her family. If Swann’s Way no longer belonged to the Hardings, where would that leave her?
I empathized with Stephanie’s dilemma but I disagreed with her strategy. Stephanie was threatening to terminate her relationship with her sister—and cut Audrey off from her nieces and nephews—if Audrey didn’t make concessions. This is a common hard-bargaining tactic: to “hold the relationship hostage” when negotiating with a counterpart who places a high value on preserving the relationship. But such a tactic often backfires. While Audrey might make concessions, it was more likely that she would react defensively, fearing that she would be a sucker if she gave in.
Obviously Audrey and Stephanie had a terrible relationship. What I had to decide was what, if anything, I should do about it. Was there any reason to think I could do much to repair it as a mediator? The Hardings had come to me for help resolving a real estate dispute. They hadn’t hired me as a therapist. Would it be wise to invite them to address their relationship directly in the mediation?
In some family mediations, a conversation about relationships can help pave the way for problem-solving. I was leaning toward raising the subject with the Hardings, but I decided to sound out the lawyers first. During our conference call on Monday, I asked whether they shared my perception that the sisters’ relationship was at the heart of the problem. They immediately agreed. Stephanie’s lawyer said, “If we didn’t have to worry about our clients’ hostility toward each other, I’m confident that we could negotiate a reasonable deal and keep this case out of court.”
I said, “I’m wondering whether part of our next session should be devoted to a conversation between Audrey and Stephanie about their relationship. I would facilitate, of course. If the sisters were willing, do you think having such a conversation would be advisable?”
“I wouldn’t risk it,” advised Stephanie’s lawyer. He thought there was a good chance Stephanie would walk out of the mediation in reaction to something Audrey said.
Audrey’s lawyer was also worried, but to him it was worth the risk because Audrey really wanted to improve her relationship with her sister. Matt’s lawyer said that Matt desperately wanted his sisters to repair their relationship and would be supportive.
“I’d like to try,” I said. The sisters knew how to push each other’s buttons, I acknowledged, but without some sort of improvement in their relationship I doubted there would be a good outcome. It would be harder for them to reach a negotiated deal, and even if they did, it might fall apart before it was fully implemented. “If we could somehow help them learn how to communicate more effectively with each other, they would have a better chance of reaching a deal that met their interests.”
I then assigned some homework to both lawyers and clients. I said I had taken the liberty of sending each of them a copy of Difficult Conversations: How to Discuss What Matters Most, a book written by three of my colleagues at Harvard’s Program on Negotiation.15 I urged that they all read it before the next session. When we met again, I would ask the Hardings whether they were willing, with my help, to have a “difficult conversation” about their relationship. If any of them objected, I wouldn’t push it.
Audrey’s lawyer said he liked this plan and was confident Audrey would be motivated. “Is there something constructive that Audrey can do in the meantime to prepare?”
“That’s a great question,” I said. “After you and Audrey have read the book, you might ask her that question in light of the recommenda-tions of the book. After all, she really knows her sister and the history of their relationship.”
At the appointed hour, the siblings and their lawyers arrived for our third session. I was delighted to find that everyone had read the book. I asked the siblings whether they were willing to explore together whether there were some ideas in the book that might help them communicate more effectively with each other, and they all signaled their willingness.
“What are your reactions to the book? Any ideas you find useful?” I asked.
Audrey spoke right up. “The authors suggest the parties in conflict often have radically different perceptions of what happened in the past and its meaning. They suggest that it’s useful to ‘disentangle intent from impact.’ ”
Because Stephanie looked puzzled, I elaborated. Suppose another person has done something that really hurt me. I may too readily infer from my pain, which is real, that the other person must have intended to hurt me—that this was a principal motive for their action. But often this is not the case. To make matters worse, when I accuse this other person of having intentionally hurt me, he or she may respond defensively and be unwilling even to acknowledge the impact of their action on me, because they are convinced their motives were pure. The authors of Difficult Conversations suggest instead of arguing about whose perception is right (and whose is wrong), it is useful to have a conversation in which each person shares his own perceptions and where both strive to “disentangle intent from impact.”
At this point, Audrey broke in and said, “I think we need to do that.”
Audrey looked directly at Stephanie. “I’ve done some thinking,” she said. “I now realize the terrible impact my actions have had on you. I’ve caused you pain by insisting that I be bought out or that Swann’s Way be sold. From your perspective, it was selfish and disloyal. You probably think I intended to inflict this pain on you. But I want to assure you that that was never my intention. I love you. My intention was and is simply to find a way to sell my interest in Swann’s Way on a reasonable basis.”
Stephanie looked down. “Audrey, you are right about one thing—you’ve hurt me. How could you not have realized how your behavior would affect me and our family?”
“I’m not claiming that I didn’t see how angry and distressed you were,” Audrey said. “I’m saying something else—that my motive was never to hurt you. I guess I wasn’t thinking about the impact on you at all. I was just focused on solving my own problem, which is that my savings are pitiful and I’m worried about retirement. Please try to understand my perspective—and my intention. Can you understand why to me it makes no sense to own a summer place I can’t afford?”
Stephanie said, “But the way you did it was cold and unfeeling. Surely you must have known how much Swann’s Way means to me.”
Now Audrey looked annoyed and I sensed she was tempted to go into def
ense mode. To help her avoid that trap, I suggested that she ask a question of her sister. An honest question, not an attack. Perhaps about Stephanie’s intentions in a particular instance that had puzzled Audrey.
Audrey nodded and asked Stephanie, “What was your intention when you cut off communication with me? When you wouldn’t let Jennifer come visit me in California last Christmas? You hurt me terribly. And I believe that was your intention.”
Stephanie said, “I was furious with you.”
Nothing further was said for nearly a minute. Then Audrey said to me, “I feel terrible about what’s happened to my relationship with Stephanie. I’ve asked myself, Why is she so angry with me? Was it that I ran away at eighteen? That I never moved back to the East Coast? That was such a long time ago.”
There was another silence, which I did nothing to break.
At length Audrey turned to her sister and asked, “Does some of this go back to Mummy’s death?”
The air in my office suddenly became electric. I wondered whether the sisters had ever discussed this subject with each other before. Stephanie looked down and said, “That was a terrible time. Mummy suffered so much.”
“And you carried the burden for all of us,” Audrey went on. “It must have been incredibly difficult. Stephanie, you were heroic. Daddy couldn’t handle it. Matt was busy teaching. I’d breeze in every few weeks and share my latest stories with Mummy and off-color jokes with Daddy. But I didn’t do my share. And worse still, I never told you how grateful I was for what you did.”
This was not a family that found it easy to express or respond to such emotions. But both sisters looked tearful, and suddenly Stephanie broke down and began to sob. Matt reached out and squeezed her arm. The lawyers and I almost collided with each other as we rushed to offer tissues and handkerchiefs. Our fumbling prompted laughter and eased the tension. At length Stephanie turned to her sister and said, “Thank you.” Despite my gentle probing, none of the siblings felt the need to say anything more on the matter.
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