When Honesty Is the Only Policy

Transparency Is Essential for Successful Divorce Mediation

by Michael Heath

Early-stage divorce mediation (as opposed to court-mandated mediation) is a voluntary process. A couple hires a mediator prior to filing any papers with the court, what I call courtless mediation. The couple collaborates in gathering essential information to use in resolving issues such as division of assets, spousal support, and child custody. They then use the information in mediation sessions where the goal is a divorce agreement. There are several advantages to the approach including limiting costs, controlling the decision-making process, reducing animosity and enabling for a more expedient settlement. For the process to work effectively, truth is indispensable.

Discovery

Discovery is the gathering of information that will be used to resolve a dispute. Litigation employs formal discovery where both sides respond to requested information for the purpose of building a case against the other. Interrogatories, subpoenas, motions, and depositions are tools of the court that can make the procedure very expensive. Mediation utilizes an informal discovery process where the couple collaborates in organizing necessary paperwork that will be shared during the discussions.

No Powers of the Court

When couples choose to end their marriages through mediation, they essentially surrender their use of the court system. While there is a significant cost savings, there is no ability to compel the other side to provide information or evidence through the voluntary process. Neither mediators nor collaborative lawyers have the power to request a subpoena, deposition, etc. the way a litigator who has filed court papers can. If a spouse hesitates in providing pertinent information the process can be delayed. If they refuse to cooperate, then it is almost certain that the process will have to be abandoned.

Examples of relevant information are as follows:

• Tax returns
• Bank statements (personal and business)
• Investment portfolios
• Property deeds

If a spouse has a track record of deceit and secrecy, then mediation is not a good option.

Trustworthiness for Winning   

Mediation employs a solutions-based discussion approach where the goal is for both spouses to be satisfied with a divorce agreement. This can only be truly achieved when both spouses fully cooperate. Being truthful is not only a legal obligation, but a moral one as well. Deception causes resentment, derailing the process. Subterfuge that is uncovered after an agreement is signed could lead to legal problems down the road. Full disclosure gives a couple the best chance at ending their marriage in a manner that is a win-win.

Collaborating for Positive Results

Both spouses should always look at their mediation sessions as an opportunity to end their marriage in a way that benefits them both. A lower-cost, more amicable divorce that is settled in a reasonable amount of time is what most divorcing couples want. Such a goal can only be achieved when each invokes a best policy of pure honesty.