Divorce
Article
This article was
published in Divorce Magazine and are reproduced here with their full permission.
Mediation
Barriers
We asked several prominent divorce
mediators in Southern California how to recognize and overcome some of the most common
barriers to a successful mediation. Here's what they had to say.
Edited by Jeffrey Cottrill
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 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 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.
