Dealing With Complexity During Divorce Mediation
If your case is complicated, you will need the same experts that an attorney would recommend. You must know the tax consequences with, for example, appreciated assets and deferred compensation. Significant assets, retirement plans and goodwill of a business or professional practice must be appraised to get the fair market value. Mediation is neither quick nor cheap if you have a complex balance sheet. If you have a lot at stake, of course it’s worth protecting. If you have a complex case, why not get an attorney to work with your spouse’s attorney in the usual manner to craft a mutually advantageous solution, rather than use two attorneys and a mediator?
Expect the mediator to suggest an expert for the tax work or appraisal if needed. Using one expert is a savings over using two. Once again, mediators aren’t the only ones suggesting reasonable approaches. Your attorney can agree your spouse may retain an expert to evaluate a problem area, provided this expert’s work product is subject to your review before presented to the court and also to your right to retain your own expert. Such an agreement keeps your costs down while preserving your rights. The report of your spouse’s expert must be made available far enough in advance of trial to give you sufficient time to double check it and to retain your own expert, if necessary, to present the correct interpretation of the facts.
The mediator may wish to talk to you individually in a caucus to, perhaps to first clear a proposal or position before suggesting it to the other side. A proactive mediator can do much to reinvigorate discussions that have bogged down. For example, a proposal in which each of you might get something especially valuable to you if you would be willing to give up a specific something more valuable to the other side is a win-win situation. Expect that no matter what the response of each of you, the mediator will be certain to promote fairness by talking with each of you, even though he or she may have needed to talk to only one of you.
Your mediator may also inform you in one of these equal-but-private talks (caucuses) of the downside that you face if you persist in stating that you will take a certain issue to court. The mediatorís experience and honest assessment of the potential risk in letting a judge decide your most important issue can be the most constructive aspect of the mediation process. Generally, clients represented by lawyers in mediation are prepared for serious settlement discussions significantly earlier than if the same clients and lawyers were proceeding to trial.
Don’t expect the mediator to invite conflict. You are not likely to be asked to change your position on some issue, such as selling the house, to take one against your spouse because it would be in your best interests. However, if you hear, ever so softly, a recommendation come from the mediator that you, or both of you, should consider getting an attorney, make notes of whatever points were discussed just prior and talk to your attorney immediately. One of you may be about to give away something you’re not aware of, and that someone might be you.