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.
