Articles Written By Professionals For Everyday People
Barrier #1: Failure to disclose important information
In a divorce, the parties have a duty to fully disclose all financial and other pertinent information, whether it is separate or marital property (assets, debts, income, or expenses) through the entry of judgment. Spouses (whether living together or separate) have a fiduciary duty to disclose documents relevant to the parties: property, investment opportunities, inheritance, gifts, debts, and even lottery winnings.
The mediator has a duty to require the production of all documentation such as bank statements, investment papers, credit-card bills, payroll stubs, tax returns, etc. If at any point in time either party refuses to disclose, the mediator must do one of the following:
- Educate the parties as to their duties under the laws (and consequences of non-disclosure) and convince the parties to comply with disclosure requirements.
- Advise the parties to subpoena documents through independent counsel.
- Inform the parties concerning asset searches.
- Terminate the mediation and advise the parties to litigate to enforce their rights to full disclosure (last resort).
If the parties don’t disclose peacefully, they will be forced to reveal all information in a costly battle. In mediation, the parties disclose in a confidential private setting. The advantage of disclosure through mediation is that their confidential personal and business information doesn’t become public record, so privacy is protected. Since there is no privacy protection in a litigation setting, divorcing spouses are wise to voluntarily disclose in mediation to protect their finances and their confidential information.
Mari Frank is an attorney/mediator based in Laguna Niguel.
Barrier #2: Different emotional stages
Divorce is an emotional event as well as a legal and financial one; frequently, the parties are not at the same emotional place at the same time. One party is ready to accept the end of the marriage and move on while the other finds the transition more difficult, does not want the divorce, or subconsciously wants to stay connected to or in control of the other person. Such feelings manifest themselves when that party raises issues that have already been resolved or continually finds new issues to be addressed.
The problem with efforts to keep the mediation from ending is that the spouse may not be willing to participate endlessly and loses patience, gets angry, or feels compelled to push for closure with threats of litigation. The conflict escalates, and progress is undermined. If the person trying to hang on thinks that litigation will allow continued involvement with the other person, he or she is using a counterproductive approach because the nature of their relationship becomes more negative. A better approach is to accept the inevitable and work cooperatively through mediation.
The mediator who recognizes the pattern can utilize reality-testing techniques and set limits that allow both parties to reach closure through mediation, thus avoiding the negative consequences of litigation. The final result is that in the long run, the relationship between the parties can be cooperative and constructive.
Robin Duboe Seigle, Esq. is the administrator of San Diego Mediation Center’s Divorce Mediation Services as well as a mediator and trainer.
I constantly counsel clients to get a reality check when it comes to expectations of divorce litigation. In fact, litigation can be unpredictable and an enormous emotional and financial strain on both parties. Litigation should be the court of last resort.
There are certainly situations when litigation is the only practical recourse in dissolving a marriage, usually when other strategies have been explored and exhausted. But when the only alternative is litigation, one should not and cannot expect it to be a magical elixir.
There are always disappointments in litigating divorce, usually very painful ones for the ex-partners and their children. Yes, there are many examples of litigation that result in one party receiving all that was requested. But they are hardly the rule. There are choices that can lead to more satisfactory conclusions, ones that can be fair to all family members and diminish the agony.
Without question, the mediation process is preferable, since it typically obviates many of the burdens associated with litigation. It allows a third party to work on a binding resolution without the costly time taken by litigation that often involves the division of property, child custody, and support. Mediation allows spouses, their attorneys and a mediator (possibly retired judge, disinterested family law attorney or a therapist) to privately resolve the issues and expeditiously derive a final agreement that will be endorsed by the court.
You may think you have a strong case for litigation, but you should remember such actions average 20 months and can cost six figures and beyond. There’s a better way.
Stacy D. Phillips is founding partner of Phillips, Lerner & Lauzon, a prominent family law firm in Los Angeles.
Barrier #4: Failure to understand and prioritize the interests of you and your ex
One fundamental barrier to a successful outcome of your mediation is the failure to understand the underlying interests behind you and your spouse’s positions. If you fail to consider and communicate your interests, you may find yourselves at a dead end, with each party entrenched in their positions. By broadening the discussion to your interests, you can move beyond the impasse to looking for solutions to address both your needs.
The difference between arguing positions and addressing interests is illustrated in the following example: Two patrons studying at a library are arguing over a window. One person wants the window open, the other wants it closed. When the librarian asks the first why he wants the window open, he states he wants fresh air. The second patron says he wants the window closed so he doesn’t have the draft. The librarian then resolves the argument by going to an adjoining room and opening the window. Thus, the patrons have fresh air without the draft.
Before you engage in mediation, it is helpful to make a list of your specific interests. Your most powerful interests are basic human needs: security, economic well being, a sense of belonging, recognition, and control over one’s life. Think about your spouse and consider the interests he or she has as well.
Talk about your interests during mediation. This will help you and your spouse to stay focused on the future. Be specific and vivid in talking about your interests. Doing so will impress the other party with the legitimacy of your interests. At the same time, acknowledge his or her interests as part of the equation. If you want the other side to appreciate your interests, show that you appreciate theirs. You will find that you make the most progress in mediation when you firmly state your interests, yet remain open as to how to address them. Like the patrons in the library, you must remember there is more than one way to address your interests, and some solutions are preferable because they address both parties’ interests.
Debra N. Caligiuri has been practicing law for 12 years. Her office is in Encinitas, and she practices family law and mediation exclusively.
Barrier #5: Failure to check (or dump) emotional baggage
Like an anchor dragging behind a boat, unchecked emotional baggage can slow down and sometimes sink the mediation process. Anger is perhaps the most common emotion seen by family-law mediators, and it is understandable. It is far from easy for a couple to sit across a table from each other discussing very volatile matters when they are in the throes of divorce.
Closely related to anger, and often the source of the anger, is jealousy, triggered sometimes by one of the parties knowing or suspecting that the other has had an affair, or feeling that the other party will be moving on to greener pastures while he or she will not. To keep the mediation process afloat, the mediator may suggest that the parties take a break, walk to cool down, or (in extreme cases) that the parties call it a day and schedule a new session for another time.
Greed is another common emotion that can severely hamper the mediation process if left unchecked. Often, a party with a materialistic mindset, sometimes combined with anger, strives to acquire as much of the assets as he or she can get. The best solution I have found in such situations is to remind the monetary-minded party or parties that for the mediation process to work, the parties must be fair and reasonable and that the alternative of litigation will be far more expensive and time-consuming.
The emotions of hurt and pride can also be huge obstacles to productive mediation. Although the mediator is not a psychiatrist, at times he or she may feel like one. But the mediator must keep reminding the parties that the object is to resolve the issues between them fairly and within a framework of existing law. They may need counseling to deal with their inner emotional turmoil, but it is not in their best interests to use the mediation process to sort out such feelings.
Anthony J. Hill is a graduate of Southwestern School of Law in Los Angeles. He has practiced family law in Pasadena since 1987 with an emphasis on mediation and negotiated settlements.
In order to achieve a lasting agreement in mediation, it is essential that both parties make knowledgeable decisions. Otherwise, second thoughts and regrets will continue to plague them down the line, undermining their agreement and their future relationship, especially if they have children together. And in the worst-case scenario, an agreement could be set aside by the court if one party demonstrates that they lacked relevant information.
Divorcing couples need to have a common understanding of what their asset and debt picture looks like, for example, before making any decisions about those assets and debts. Even if, during the marriage, there was a division of labor in which one had a greater understanding of their finances, that imbalance needs to be righted before decisions in mediation are made. While it may seem cumbersome to share statements and other documentation or to take the time to value a pension, for example, it is time well spent. It is also important to have a common understanding of what each would be legally entitled to and responsible for.
Only with all this knowledge and understanding are the couple able to consider their options carefully and make conscious, informed choices. They can weigh various alternatives and craft an agreement that fits their particular situation — making decisions that feel fair and comfortable, though not necessarily bound by “the law”. Lack of knowledge and information breeds rigidity. Once both people are informed, they can relax and think creatively, and afterward, they can “let it go” rather than stewing over what they would have done if they had only known.
Pamela Britton White has practiced mediation full-time in the Pasadena area since 1986.