If a divorce mediation is characterized by a power imbalance (financial or emotional), parties should be cautious in deciding how to proceed. A separate consulting attorney can level the playing field for the disadvantaged spouse.

I don’t think I’m blazing a new trail in saying that divorce is hard. Pretty much everyone knows that divorce brings along with it a whole bunch of unique emotional stressors and psychological pitfalls that can wear down even the strongest personalities. Even in relatively amicable divorce cases, the fact that two people are winding down a relationship that they hoped and expected would last a lifetime is a sad reality that requires good self-care to weather.

And in the worst of cases – cases involving scorched earth tactics, using the children as pawns, hiding assets, etc. – the psycho-drama of that expensive, time (and soul) consuming litigation amplifies exponentially. So seeking out alternative methods to resolve issues in a divorce case in order to avoid litigation and the pain that comes with it is a rational exercise.

Mediation – sitting down with a neutral attorney who does not represent either party – is the most common alternative. And it has obvious upsides. Working with a seasoned mediator to come to a mutually agreeable resolution on what can be thorny legal issues generally costs much less than the litigation approach.

In litigation, the issues must be presented to the judge by way of a formal motion and through a formal hearing. That process requires quite a lot of legal work, and the outcome may very much depend upon the judge who hears the motion.

In mediation, though, the mediator’s sole job is to get the parties to an agreement one way or another, and he or she is not necessarily bound by the same legal precedent as a judge would be. As long as the parties agree, the mediator is free to be creative in fashioning a resolution. Assuming that the parties can work together productively (which is not always the case in mediation), a case that could take many months or years to resolve can be resolved in a matter of hours with the right mediator.

But not every case is right for mediation.

Cases involving big power imbalances (either financial or emotional) can be more difficult to finalize in mediation. Since the mediator is not there to support one party more than the other, when a “big personality” on one side of the negotiating table continually seeks to gain an unfair advantage over the other, or is not being truthful or honest about financial/income issues, the mediation can quickly become a one-sided affair that leaves the disadvantaged spouse upset and unprotected.

Moreover, unless the mediator is successful in getting the parties to sign off on actual agreements (whether for property or support), if one party pulls the plug on the mediation even when the mediator has reduced all of the negotiations to a final – albeit unsigned – agreement, the mediation is kaput and litigation is the only alternative. Which means that everything accomplished in mediation will be wiped out and the parties will have to start from square one.

Does this mean that mediation should be avoided? I don’t believe it does. Our jobs as divorce attorneys is to resolve problems for clients. If that can be done more cheaply and efficiently through mediation, then mediation should be pursued. But if a case is characterized by that power imbalance, parties should be cautious in deciding how to proceed.

This does not mean that mediation should be tossed out altogether. One alternative would be to hire a separate consulting attorney who can advise a party behind the scenes, and make suggestions on strategic approaches to contested issues in the mediation. That approach does come with some additional cost, but the peace of mind that comes with having a legal support person to advise along the way can make the power imbalance less problematic.

Ultimately, the success or failure of a mediation comes down to the parties participating in it. Understanding the process and knowing what the options are in a particular situation is the key to its success.



ABOUT THE AUTHOR: Neil M. E. Forester (@nmeforester) is Managing Shareholder of FORESTER PURCELL STOWELL PC, a Northern California law firm focused exclusively on specialized counsel for complex divorce and family law issues. He is recognized by the State Bar of California’s Board of Legal Specialization as a Certified Family Law Specialist. Neil regularly represents business owners, professionals, and other high net worth individuals (or their spouses) in divorce, premarital agreements, and related actions. Beyond his legal practice, Neil serves as Board Chair for WEAVE and NorCal Boxer Rescue. He can be reached at info@foresterpurcell.com or 916 293 4000. This information is general in nature and should not be construed as legal advice.
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