Mari J. Frank, Esq & Associates, Laguna Niguel, California Atorney and Meditor, Laguna Niguel, California
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Divorce Article

logo-dm.gif (3693 bytes)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:

  1. Educate the parties as to their duties under the laws (and consequences of non-disclosure) and convince the parties to comply with disclosure requirements.
  2. Advise the parties to subpoena documents through independent counsel.
  3. Inform the parties concerning asset searches.
  4. 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.


  

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