Mari J. Frank, Esq & Associates, Laguna Niguel, California Atorney and Meditor, Laguna Niguel, California
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Frequently Asked Questions in Divorce

logo-dm.gif (3693 bytes)This faq was published in Divorce Magazine and are reproduced here with their full permission.

"If a divorce involves complex issues, can you still use a mediator?"

Movie stars and wealthy people with numerous houses, myriad businesses, and extensive assets know that their complicated divorce issues will best be settled through a mediator, and not through a battle in the public eye. The more complicated the dissolution, the better off you are to resolve the issues in mediation.

In the mediation process, the parties can agree to use neutral experts to help them to simplify the issues. For example, the parties often agree to use one forensic accountant (to value the business, determine the cash-flow analysis, and help with the issues of stock options, 401Ks, and business valuation), appraisers, actuaries, business evaluators, etc. These experts provide a report based on fully disclosed information. The mediator requires complete disclosure without formal discovery. The issues can be presented for the parties to clarify and ask questions (with or without independent counsel present), so that the complex issues are made much more understandable in a less formal setting where the rules of evidence are relaxed, the strict judicial procedures are not required, and there are fewer time constraints.

Mediation allows for complete disclosure yet complete privacy. Because of First Amendment Rights, courts will now refuse to seal documents or keep issues out of public record. The fear for many disputants (now with all of the documents being electronically scanned) is that hackers can get into the system, and some courts are putting private information online and making it easily accessible to third parties.

Litigation often makes complex issues even more complicated in that the subpoenas that attorneys issue in litigation use are far broader than what would actually be necessary for use in an agreed-upon expert setting. Formal Discovery often requires more information than actually is needed. The costs increase tremendously, and often the vast information may make it easy to miss the heart of the matter when reviewing numerous irrelevant documents. The process can be streamlined when the neutral expert looks through documents and determines what is necessary for him or her to review rather than just subpoenaing every paper possible.

When the parties agree in mediation to use a neutral expert, there is less confusion because there are no conflicting exaggerations from opposing experts. Instead, the agreed-upon expert, knowing that he or she is hired by both parties, has a duty to be as objective as possible. Just as in any other case, the mediator, attorneys, and clients will do what they can to get the most qualified expert to help the parties reach a truly satisfying agreement. Clients using opposing reports and fighting the information battle often "can't see the forest for the trees" to get to the main issues of valuation and fair distribution of assets.

The more complex the issues, the more likely they will be resolved quickly, cooperatively, and effectively using the problem-solving approach in the mediation process.

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