Successfully Employing Mediation to Settle Issues in Your
Divorce
By: Mitchell
Reichman
Getting divorced can be both
emotionally exhausting and financially devastating. Couples
may consider mediation as one method to transverse through the dissolution
of their marriage with less acrimony and potentially at lower
cost to the divorcing couple.
We often attempt to resolve divorce
cases through mediation and in most cases we achieve that
goal. Generally, there are strategies that help increase the
probability of not only a successful mediated resolution but also a
fair result.
Prior to commencing the mediation,
there needs to be complete disclosure of all relevant
information. Some assets may need to be valued or appraised
by independent third parties having the proper expertise. Any
appraisals or valuation reports need to be disclosed and exchanged
and in some cases having the valuation or appraisal completed by an
independent third party prior to the mediation is extremely
helpful. Both parties need to agree on certain components of
the valuation methodology or each party should obtain his or her
own independent valuation.
Often some of the less contested issues are
resolved prior to mediation, leaving the mediator with the more
difficult issues. Taking some of the less contentious items
off the table will allow the mediator to focus on the important
issues - and generally - will save both parties money in legal
fees. It is important to exchange at least a written list of
the issues that need to be resolved prior the mediation so that
they may be incorporated into the settlement document.
Knowing what issues are left open will
determine what mediator is selected. For example, some
mediators are particularly adept at helping to resolve financial
issues while others are better at issues relating to custody or
parenting time. Very complex financial issues will require a
mediator that is well versed in business and property
valuations.
In our cases, both parties are
represented by lawyers throughout the process, including all
meetings with the mediator. However, in mediation, there is
no requirement that either party have their own attorney. It
is standard practice for both parties to share the cost of hiring
the mediator and all of the mediator's fees. Typically, cases
that are resolved take one full day or less of mediation.
Either the mediator or one of the attorneys prepares a settlement
document.
While the steps outlined above are
often the most cost effective approach to mediation, there are
parties who approach the mediation process differently. They
start in mediation before any disclosure has occurred or valuations
agreed upon. Their expectations are that the mediator will
direct what needs to be disclosed - similar to what a judge might
direct divorcing parties to do. They may have meetings with
the mediator without lawyers or again, only one party may have an
attorney. Typically, there are several meetings to gather and
exchange information before there is a possibility of
resolution. Because of the increased amount of time that the
mediator is spending, this approach to mediation is usually more
expensive.
Before you consider mediation,
determine which method is best for you and whether or not you want
an attorney to represent you and your interests. The
contested issues need to be defined so that the mediator selected
will have the requisite expertise. If your divorce is
acrimionious and contentious, mediation may not be a viable
solution. On the other hand, if both parties are prepared to
make reasonable, or even difficult, compromises mediation can be a
win/win solution.
About the author: Mitchell
Reichman is an attorney with the Phoenix law firm of Jaburg Wilk. He is a
Certified Specialist in Family
Law/Divorce by the State Bar of Arizona Board of Certification
and a Super Lawyer in family law. Mitch is experienced lawyer
in representing clients in high conflict divorces with substantial
assets. He can be reached at 602.248.1000 or mxr@jaburgwilk.com.
This article is not intended to provide legal advice and
only relates to Arizona law. It does not consider the scope
of laws in states other than Arizona. Always consult an
attorney for legal advice for your particular situation.
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