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Divorce and Sitting Down at the Table

by | Feb 27, 2023 | Divorce, Litigation, Mediation

The main difference between divorce mediation and the traditional litigated divorce with attorneys, is how long it takes for the couple to sit down together at the same table to have a meaningful discussion to settle their case. In divorce mediation, the case begins and ends at the conference table where the couple comes together with the professional who will guide the case from the first session to the last. In litigation it begins in two separate offices across two distant desks behind closed doors with dueling strategies and minimal open communication. The healthiest of divorces are the ones that can chart the shortest path to getting to an educated, meaningful and productive conversation at the settlement table. We as professionals are doing our clients a favor when we streamline the process of getting to that place where settlement can happen.

I am Not Suggesting Rushing to the Settlement Table. There is some work that needs to be done before meaningful settlement discussions can happen. First, each spouse needs to understand what the issues are, what their rights are, and what their options are. Being educated so you are in a place to make good decisions is essential and it doesn’t do anyone any good to rush in and make rash, uninformed ones. Second, it is essential to have all relevant information about what assets and debts there are, verifying documents confirming values and balances, as well as information and documents confirming the income and expense information of the couple. Nobody should be required to go blindly into a conversation about settlement. The books should be opened and both spouses should have all of this information at their fingertips before they should be asked to begin making decisions. This is required by the law and in proposing that we streamline getting to the table, I am proposing as well that we streamline exchanging all the relevant information so everyone is ready to sit down together.

Sitting Down at the Same Table in Litigation. The big difference between litigation and mediation is how long it takes to get to that table. In litigation it seems we have put a lot of obstacles in place that get in the way of finally sitting down at the same table. The first obstacle is that we have an independent process of educating the couple about the issues, their rights and their options. The process of getting separate information will often create a greater divide in what each spouse expects to accomplish. Mixed with this, litigation has a process that involves the Court in putting temporary terms in place to hold things together as the couple goes through the process. To obtain the most favorable orders both sides are compelled to shine the light most favorably on themselves and most unfavorably on the other spouse. While a roadmap is needed to sort out the sharing of the children and the managing of the finances as the divorce proceeds, this detour has a tendency to delay the getting to the table, and often makes all involved feel like the divide that separates is vast and to sit down and try to tackle it all might feel premature and destined for failure.

A second big obstacle in litigation is the completion of the exchange of disclosure and information. It really seems to take a long time to get everything needed gathered. For some reason there is often a lack of cooperation in this exchange of information that, again, is mandated by law. The gathering of the information will often involve formal discovery processes such as Demand for Production of Documents, subpoenas, and depositions. By their very nature these mechanisms take time and often give rise to new inquiries that create further delay in arriving at a place where both spouses are comfortable with the level of disclosure.

A third obstacle to settlement in these litigated cases seems to be conflict itself. I mentioned the process of filing pleadings with the Court that shed one side of the case in a good light, and one in a not so good one. Nobody appreciates being attacked and the nature of the tone of the Court filings as well as the tone of the arguments being made in the courtroom move couples further away from each other, ultimately standing in the way of putting the couple in a place where they are ready to cooperate with one another and find some common ground to sort things out.

It is unfair to characterize all litigated cases the same. Many attorneys have their eye toward getting to the settlement table sooner rather than later. Many attorneys seek to minimize the attacks in the pleadings filed with the Courts and counsel their clients to take a reasonable approach that focuses on the positives and not the negatives. We send settlement letters to pose practical solutions and offer to provide any missing documents so that both sides have all the information they need. Despite these good intentions, it still takes an awful long time for litigated cases to get to the settlement stage. The San Diego Courts require the parties to participate in a Mandatory Settlement Conference with an experienced volunteer attorney acting as a Settlement Judge before going to trial. These conferences are often taking place a couple of years after the case has been filed. A large percentage of these cases finally get settled at these conferences. In working with these cases I am struck by the arduous journey the couple has had getting to this point. It has usually been an expensive one that has put the couple’s lives somewhat on hold and has created resentment and frustration. It has simply taken too long to sit down at the table.

Divorce Mediation: Sitting Right Down Together at the Table. With mediation the couple is working together from the start. We are not working to get to the table, because we are already there. We are not immediately making decisions but are instead streamlining the process of getting ready to make decisions. We start with getting educated on the law and the issues. The mediator provides the couple with detailed information so each spouse can understand what their rights and responsibilities are. The couple has the option to seek independent counsel and to receive legal advice to further supplement their education if they choose, but don’t need to. They are encouraged to ask questions to assure they have a good understanding of everything before being asked to make decisions.

The parties also agree to open the books. We identify the documents and other information needed for full disclosure and set to work gathering it to get to a place where the couple is comfortable that everything has been identified and properly valued, and that they have a good understanding of each other’s income and household expenses.

This process avoids many of the detours present in litigation. The wait to involve the Judge in making hold it together arrangements is avoided by working at the first session to discuss interim child sharing and finances. Pleadings are not filed with the Court attacking one another and escalating the conflict. Sensitive issues can be discussed but they are done in a private setting and out of the public eye. They are also done under the guidance of a professional with sights on providing a path to a healthy outcome.

With this work completed, the mediating couple has quickly arrived at that table where they are ready for meaningful discussion of settlement. They have arrived there through cooperation and clear communication which set the stage for productive settlement work. The time it has taken to get to that place is a fraction of what it takes with litigation. Nothing is compromised in the speed of getting there as corners have not been cut, and the couple is in a good place to make decisions. It does take two people committed to sitting down at the same table and to exchange the required information. It does take some semblance of trust that neither spouse will hide assets or not be forthcoming with required information. Most couples are capable of this.

Every step we take in a divorce, from the very first one, to the last, should be calculated to bring couples a little closer to sitting down at the same table for settlement. We should be working together to exchange information and maintain clear communication to remove the obstacles which tend to stand in the way.