People ask me why they should not just go unrepresented to a private mediator if there are assets. I frankly think private mediation is the worst option, even though I believe alternate dispute resolution is great.
I always propose a different option when people suggest going to private mediation unrepresented. I tell them if you think you and your spouse are reasonable, why don’t we just draw up the agreement in a couple of hours: the house goes here, the business goes here, joint custody, we are going to share holidays.
What is there to mediate about that? If you are right, and sometimes you are—I would say 50% of the time both sides are reasonable—why are you paying a mediator to go back and forth? I can have the agreement wrapped up, signed, and done in a week at a low cost. I will have one of my associates do it who do not bill at my rate.
People think a mediating process could be slower and better, but if you do not arrive at an agreement, you could spend months or years in mediation. I have had clients spend over a year in mediation with no agreements. Whereas, if you really believe there is an agreement, let me draft it.
Let the husband at least have the written agreement and respond to it. If, for example, they agree to everything but spousal support, then we can sign everything but spousal support. We can go to mediation on just that one dedicated issue.
If you really want to do mediation in a complex case—for example, there is a business involved—you can hire a private mediator, but you want your lawyer there who can tell you the formulas that are used in California law to value businesses. There are different ways to divide the stock. You can divide in kind, you can assign values, or you can determine how you are going to arrive at a contested value other than having two experts fight about it. I do not like the idea of sending two, maybe very differently positioned litigants, to a mediator who does not know the law and the complexities.
A critical decision to make during a divorce is the date of separation, because in California the date of separation is the date on which community interest ends. I just got a case where there are seven pieces of real property in different states. They are in the names of the husband’s girlfriend’s sons who are 20. He moved out in 2013. The woman who came to see me filed a divorce petition with a lawyer who is not very experienced and who put in a certain date of separation.
When I got the case I looked at the file that she amended. I thought the previous attorney picked a good first date of separation. But the attorney then amended the petition to put a date five years earlier when the assets were not even acquired. Now, I am going to go in and I have to be the attorney who changes the separation date for the third time. How is that going to look? You do not even know what date you separated? It is ridiculous. I asked the client, why did you do that? She is an unsophisticated immigrant and did not know.
I have the list of assets in the file. Did the previous attorney tell her how many homes were purchased when they were still filing joint tax returns, still operating a business together, still having a child? Now, I am going to have to make the argument that she had incompetent counsel. The date of separation is a critical decision when you file the divorce petition.