How Family Law Attorneys Tend to Think, Part VI

06/19/2015 04:05 pm ET | Updated Jun 18, 2016

As if the prior five parts of this series weren't frightening enough, it only gets worse.

A great many of my family law attorney colleagues believe that mediation only works under such narrow circumstances, that almost no cases are appropriately suitable for it. They believe that mediation is only effective in family law cases under the following circumstances:

1. Full disclosure of all assets and debts,
2. Knowledge of their legal rights and obligations,
3. No power imbalances,
4. The decision to divorce is mutual, and
5. The parties equally share the cost of the mediation.

From my vantage point, the first two points are tied together and relate to the issue of making "informed decisions." As I have said before, legally "competent people making informed decisions can agree on anything they want, that is not illegal or otherwise in violation of public policy." No argument here. However, the statement I made expresses my opinion, whether agreements are reached through negotiation, mediation, or through any other means. It is important to note that in California, division of assets and debts is a trial issue and that only approximately three percent of all family law cases go to trial. Therefore, almost all family law cases are resolved one way or another outside of trial.

Are my colleagues applying a higher standard for the level of informed consent required for a matter to be resolved through mediation than through negotiation? If so, why? What type of information is obtained through litigated negotiation that cannot be obtained through mediation?

Whether a matter is resolved through mediation, negotiation or litigation, I always require that the parties exchange their Declaration of Disclosures before agreeing on issues of a financial nature, except for very temporary agreements, if necessary. At a minimum, the Declaration of Disclosure consists of the following: (1) "A completed Schedule of Assets and Debts or a Property Declaration for both Community and Quasi-Community and Separate Property;" (2) "A completed Income and Expense Declaration;" and (3) "All tax returns filed by the party in the two years before the date that the party served the disclosure documents."

When the forms specify that certain attachments are to be included, I don't consider those documents complete unless and until those attachments (if they exist) are included and the information on the forms and the information matches.

In fact, after being retained to mediate a divorce case in which the parties are not represented (at least not yet), I send them the following email:

"Certain things must be done in order for a court to sign off on your divorce. You are married and spouses have a fiduciary duty to each other. The law requires that spouses make informed decisions when dealing with each other, and that includes during divorce proceedings. In fact, the courts have punished people for 'hiding' or otherwise failing to disclosure any assets and/or debts.

One such example occurred when a woman purchased a lottery ticket, won the jackpot and filed for divorce the following day. However, she neglected to advise her spouse that she won the lottery and failed to disclose it throughout the divorce process. Since the ticket was purchased during marriage, it was presumed that it was purchased with community property and was thus community property. Ultimately, the court gave all of the lottery winnings to the husband, even though he would only have been entitled to half, if his wife had done the right thing.

In another example, a husband failed to disclose an account with substantial assets that he believed was his separate property. Even if he were correct in his assumption, by not disclosing the account, the income it earned was not included for purposes of calculating support and the asset was not included for purposes of determining attorneys fees contributions. As a result, the court gave the entire asset to his wife.

I am sharing this information with you because I want you both to understand the importance of full disclosure and the consequences that could ensue, if you fail to take that responsibility to heart. I have attached a document that explains 'what exactly must be disclosed' and 'disclosure tips' from Forrest 'Woody' Mosten, an internationally well-respected family law mediator and trainer.

Please complete the following documents:

Income and Expense Declaration (with requisite attachments), and

Schedule of Assets and Debts (with requisite attachments).

The following article on characterization of assets might assist you: "California Divorce: Dividing Property - Assets and debts spouses acquire during marriage belong equally to both of them."

The following article on characterization of debts might assist you: "Dividing the Debts in a California Divorce - A basic overview of how debts are dealt with in a California divorce. Learn about complex issues that can arise when dividing debts in a divorce."

I also recommend that you review "The Most Common Financial Forms Used during a Divorce Case" from the website for the Superior Court of California, County of Contra Costa. In addition to providing links to instructions, it contains a link to view a PowerPoint presentation called "Financial Disclosures in a Divorce, Legal Separation or Annulment."

If you want to better understand your legal rights and obligations with regard to child support and spousal support, you are welcome to review the California Judges Benchguide on Child and Spousal Support. However, please remember that you may agree on anything that you want, as long as it is not illegal or in violation of public policy. Thus, you are not limited to resolving those or other issues within the box of possibilities that would occur inside a courtroom. I, for one, don't want to be placed in a box when I'm dead and I certainly don't want to be forced into one, while I'm still alive. If you feel the same way, I recommend that you consider this material only for informational and perspective purposes and that you keep your mind open to the possibility of more creative solutions that better address your respective interests, needs, values, goals and fears. It is a grave mistake to confuse the concepts of "legal justice" with "fundamental fairness."

Whether involved in negotiation, mediation or otherwise, I always ask my clients whether they would like to receive additional information from which to make informed decisions. If I am acting in the capacity of the attorney, I typically recommend that they obtain such additional information. However, when acting as the mediator, I can only provide legal information and not give legal advice. When providing legal information, I provide the clients with materials from which they can decide whether or not to request additional information. For example, if one of the spouses is self-employed or owns their own business, I provide them both with articles covering how to glean information from the tax returns and find "hidden assets."

If one party requests additional information that the other party refuses to provide, they have the same right to conduct formal discovery before reaching agreements in mediation as they do in litigation. In addition, I always recommend that unrepresented parties retain consulting attorneys and that they meet with them after exchanging their Declarations of Disclosure and before discussing terms of settlement. For reasons that should be obvious from this series of articles, I tend to recommend that they retain "mediation-friendly family law attorneys."

Furthermore, mediation can commence at any stage of the divorce, as was mentioned in my article titled "What Does Mediation Really Mean," although when families are involved, the sooner the better. Moreover, even if a case falls out of mediation because a party was not acting in good faith, why can't mediation be revisited once the parties are both comfortable that they have received sufficient information from which to make informed decisions?

Keep in mind that there wouldn't be case law pertaining to re-opening cases and penalizing the non-disclosing party, if litigation were fool-proof in that regard. Let's therefore not pretend otherwise. Regardless, the same language protecting one party from the other party's lack of disclosure can be included in a settlement agreement, whether reached through litigated negotiation, mediation, or otherwise.

With regard to power imbalances, "sophistication and power imbalances may lead to inequitable results, unless mediation-friendly attorneys are involved to level the playing field." That quote is from the chapter I authored for the 2013 edition of "Inside the Minds - Strategies for Family Law in California." In other words, whoever said that parties who mediate their divorce cannot or should not be represented by counsel? It sure as heck wasn't me. However, I do recommend that if parties involved in mediation retain counsel, they should retain "mediation-friendly family law attorneys."

Furthermore, when I am mediating a case for unrepresented parties and the terms of their agreement fall outside my realm of reasonableness because of the sophistication of the parties, power imbalances or some other reason, I have been known to insist that they each consult with an attorney before I will move forward. In fact, the following is from an actual email I sent on just such a case: "Attached, please find my draft of your Marital Settlement Agreement. As you will see, there is some missing information that needs to be provided to me and included in the agreement. In addition, please advise me of any needed changes, in the event that the document does not accurately reflect your agreement. Furthermore, as I mentioned in our last mediation session, I will not put this document into final form unless and until I know for certain that you have each consulted with separate counsel who is knowledgeable in the field of family law in California. You may not be involved in selecting the consulting attorney that your spouse retains for this purpose, regardless of how such costs will be paid."

I'm really at a loss as to why mediation would be inappropriate, unless the decision to divorce is mutual. I have successfully mediated a great many cases in which only one of the spouses wanted the divorce. What would make anyone think that an adversarial process is the only way of handling such a situation? Among other things, mediation is a dispute resolution process that helps to resolve or otherwise manage conflict. Litigation, on the other hand, is an adversarial process and therefore tends to increase the level of conflict and distrust in order to resolve legal issues. Why must the conflict level and distrust be exacerbated merely because the decision to divorce is not mutual?

It's also beyond my comprehension why some of my colleagues believe that mediation only works if the parties share the cost equally. The California Family Law Code provides for attorneys fees contributions, in order to level the playing field. This issue is address all the time in litigated cases, regardless of whether or not they are resolved inside a courtroom. When family law attorneys hire private judges either to "mediate" or rule on a case, do they only do so if the parties equally pay the cost? I ask the question because it seems that this concern about the mediator being biased in favor of the party paying more of their fees only applies to facilitative mediators. Why?

Just last Sunday, I conducted the fourth and final mediation session on a case in which the husband has been paying all of my fees. I very seriously doubt that either of them would say that I was biased because of that or for any other reason.

That case went into ‪mediation‬ because of something I've been saying for years that resonated with them - "Like it or not, if there are children of the relationship (regardless of their age), you are still a family after the relationship ends."

The power of that statement was repeated by them on Sunday, after they resolved all of their issues.

They are connected together for life because of their children and expressed the importance of maintaining an amicable relationship going forward.

Furthermore, the wife also mentioned her hesitation with the idea of mediating the divorce and said that it was much easier than they expected.

Such reactions don't tend to occur following litigation.

By the way, I didn't even bother mentioning the belief that many family law attorneys hold, which is that if a divorcing couple is able to work together in a constructive manner, they don't need mediation. This belief circles back around to the article that led to this series in the first place - "Solid negotiation skills crucial for family lawyers." The entire point of that article was the fact that family law attorneys are typically lacking in those skills, to say the least. Therefore, if the divorcing couple is ready, willing and able to have a constructive divorce, how about designing the "game" in a manner that will maximize that potential?

I'm not even going to address the argument that if divorcing couples are able to have a successful divorce, why are they even divorcing?

In case you haven't figured it out by now, I have little patience for small-minded people. That having been said, while I may know how I mediate my cases, I certainly don't know how other mediators operate. I am also not suggesting that my way of mediating is the only way of mediating or that my approach is better than those used by other mediators. As has been said by others in the past, "mediation is more of an art than a science."