Mediating ‘grey’ divorce takes a different approach: Benmor
By Tony Poland, AdvocateDaily.com Associate Editor
Getting to know your client in a “grey” divorce case is essential, says Toronto family lawyer and mediator Steven Benmor.
Benmor, principal of Benmor Family Law Group, says there is a big difference between mediating a divorce settlement when people are at retirement age as opposed to a couple much younger.
“I believe in life after divorce. That is a common theme, and it’s the advice I give to clients as a lawyer, and when I resolve their problems as a mediator, and argue cases in front of judges,” he tells AdvocateDaily.com. “I’m very alert to the fact that people need to have optimism and hope to get through what they’re going through, but that doesn’t necessarily always apply to somebody who is 70 or 80 years old. It’s very different for some of those people.”
Benmor says the explanation is simple.
“The profile of the person post age 60 is very different than someone who’s divorcing when they are 30 or 40. Their needs, their psyche, their financial position, everything is very different, so you first have to recognize what their station in life is, what their goals are through the divorce, and more importantly, the cultural sensitivities of who they are,” he says.
“Practically speaking, to the person who’s divorcing at age 30, they have their whole life in front of them. Divorcing at 70 is a very different prospect,” Benmor adds.
Just as it is vital in the investment industry to know who you are serving, the same principle also applies to the law, he says.
“You have to know your client because in family law you’re dealing with very personal and sensitive subject matters, and the same issues may have different meanings to different people,” Benmor says.
“What drives divorce is a whole series of emotions — fear, insecurity, frustration, exhaustion, and the intention to have some semblance of freedom in the remaining years. What drives grey divorce is different than if the same person were divorcing at age 30.”
He says a mediator “has to be very alert to who the person is and what their motivations are.”
“When I am mediating the grey divorce I’m spending much more time at the intake stage learning who the person is and their history, and what their view of their spouse is and was,” Benmor says. “I’m doing all of that before I even touch on the question of what they want.”
He says some people believe the starting point should be asking what a person is seeking from a divorce, but Benmor disagrees.
“That’s the last thing that I’m interested in,” he says. “First, I understand their overall holistic context, and then when they tell me what they want, there is some framework to operate within.”
“You’ve got to understand what their needs are, and what their fears and goals are.”
Benmor says, “Knowing why the 75-year-old woman is in my office wanting to split up from her husband is the focal point of the conversation,” so he can establish a rapport with the client.
He says gaining a sense of the reason for the divorce results in better advice.
“I had someone in my office this week telling me about all the problems in their marriage, and I asked what the solution was, and they said divorce,” Benmor says. “I said, ‘OK, but you now need to stop and think how does divorce solve the problem?’”
He says in one example, a woman wanted a divorce because her husband was overly generous with their grown children, and she believed they should be learning how to be financially independent.
The issue was causing a great deal of conflict, but he explained that if it was the only reason for divorce, it might not necessarily solve the problem, “It will just move it into two different homes.”
Benmor says a grey divorce can be easy to mediate to some extent because it’s unlikely that there will be parenting or support issues, “so that eliminates a mammoth area of debate.”
Ultimately, it comes down to understanding the people involved, he says.
“They may have been wanting to split up for 40 years but for economic reasons they couldn’t, or for cultural reasons they were afraid, or they didn’t want to break up their family until their last child got married,” Benmor says. “Mediating the grey divorce requires very specific and different skills.”