Kane Law & Divorce Mediation Services - Seattle/Bellevue/Issaquah/Redmond

As a family law mediator and collaborative law professional, I am constantly on the alert for signs that my clients lack self confidence in identifying and negotiating their respective needs going forward.  A wife or husband who feels powerless in negotiating parenting arrangements or financial matters cannot negotiate a durable agreement in her or his best interests.

Wait a minute, you might say.  In every marriage, one spouse is more competent than the other in different facets of a marriage.  For example, the husband may see to investments, financing the house and other major purchases, and sometimes the checkbook balancing.  The wife may be the “hands on” parent, knowledgeable on the comings and goings of the kids as well as the homework assignments.

That’s all true and, admittedly, we’re not looking for perfection when we talk about power in the mediation and collaborative law context.  What is important is confidence in the negotiations.  I’m constantly amazed by clients whose grasp of things financial improve dramatically during the mediation process.  By the same token, the absentee parent who has this or her children full time every other weekend typically becomes more “hands on” as the mediation and collaborative law process unfolds.

In mediation cases where the lack of self confidence is palpable and continuing, I urge the spouses to retain a certified divorce financial analyst or a child specialist, depending on the issues involved.  In rare situations where I conclude that professional assistance is necessary for meaningful negotiations and a durable final agreement, I will insist on this. These jointly retained professionals are barred by agreement from testifying for either party if the mediation or collaborative process fails and their work product is treated as confidential.

In other cases, I will urge a husband or wife to retain a divorce coach to help him or her deal with the emotional fallout of divorce.  My objective is always to balance the  power between the negotiating parties so they can make wise decisions for themselves and move toward their preferred futures.

I sometimes get questions about non-disclosure of assets by the partner of a spouse who’s thinking about divorce mediation. More often than not, the spouse is a wife who knows very little about the investments her husband has made. Sometimes there is an expressed lack of trust that feeds into the wife’s feeling of inadequacy in things financial.

I tell the caller that a mediator has several tools for dealing with the fear or reality that one spouse is hiding assets. First, the language of the mediation agreement that I use provides that each spouse “must disclose all relevant and material facts and information regarding the matters discussed.” The agreement also stipulates that the sale or transfer of community or separate property will not be conducted without mutual consent.

Second, I ask each spouse to disclose all assets and liabilities in writing with great specificity. If one spouse appears naïve about finances or the couple’s financial picture is murky, I will generally recommend that a financial consultant be retained to help support the couple and particularly the wife in gathering and evaluating the finances of the marriage. My job as a mediator is to do all I can to assure that both husband and wife have power to make decisions about their finances.

Last, but not least, I ask couples if is they want language in their final Memorandum of Understanding addressing non-disclosure of assets. For example, sample language might provide that if assets over a specified value (maybe $500) have not been disclosed, such assets are deemed owned 50-50 by the couple after their marriage has been dissolved.

Of course, none or this guarantees that hidden assets will ever be found. But discovery in litigation does not provide iron clad guarantees either. I do feel that mediation is probably not a good choice for a spouse with a deep persistent suspicion that her or his spouse is hiding assets. It doesn’t really matter if the fear is well grounded. If distrust permeates the negotiations, a successful outcome is unlikely.

In both the mediation and collaborative process for negotiating peaceful property settlements and parenting plans, spouses need to know that they are in charge of the content and final outcome of the process. The mediator’s job is to facilitate the process by moving the couple in a totally impartial way through all the topics important to either spouse or considered relevant by the mediator. In the collaborative process, the attorneys and other team members form a safe container in which the couple can feel supported and mutually powerful as they negotiate a final settlement.

But how are couples to know if they are likely to succeed. This is more than a “time and money’ issue. The failure to get to the finish line can mean protracted litigation and a “courthouse steps” settlement with little or no emotional satisfaction for either husband or wife.

Stuart Webb and Ronald Ousky in The Collaborative Way to Divorce (Hudson Street Press, 2006) suggested the following questionnaire for clients to assess the probability that collaborative divorce will work for them. As a collaborative lawyer who frequently wears my “mediator’s” hat, I strongly believe that these questions are equally relevant for couples contemplating divorce mediation.

“Please indicate how much you agree or disagree with these statements using the following numbering system:

1. strongly agree
2. disagree
3. neutral
4. agree
5. strongly agree

1. My ability to achieve a successful outcome in the divorce primarily will depend on the decisions I make during the process.

2. In order to achieve my most important goals, I am willing to let go of some smaller, short-term issues event though it may be very hard to do.

3. I am capable of making the emotional commitment necessary to achieve the best possible outcome.

4. I am not afraid of or intimidated by my spouse.

5. I am willing to try to see things from my spouse’s point of view in order to help achieve the best possible outcome.

6. I believe it is possible for my spouse and me to restore enough trust in each other to achieve a successful outcome.

7. I am willing to commit myself fully to resolvingn the issues through the Collaborative process by working toward common interests rather than simply arguing in favor of my positions.

8. It is important to me that my spouse and I maintain a respectful and effectivce relationship after the divorce.

9. I have accepted the fact that this divorce is going to happen.

10. I believe that it is very important that our children maintain a strong, healthy relationship with both parents.

Score: ? 30: likely that Collaborative Divorce is a good fit (more so ?40)

Score: 20-30: borderline

Score: ? 20: likely that Collaborative Divorce will be too frustrating

Circumstances such as abuse, addiction & untreated mental illness should be considered, regardless of score.” (as quoted in Well-Trained Professionals Make Collaborative Practice an Inclusive Practice, Marie Louise Mesquita, PhD, Collaborative Review, Summer 2007)