In our last post we discussed how most divorcing couples can use mediation successfully. Sometimes though, even spouses who are otherwise well-suited to the process think that their case is too complex. The reality is that complexity is rarely a reason to avoid mediation. In fact, the opposite is often true.

Greater Complexity Can Mean Greater Savings

Mediating a complicated case does generally take more time than mediating the average case. There are more issues to discuss, and there is more information to collect. This does not mean, however, that it is better to take such a case to court. The more complicated a case is, the more time-consuming and expensive litigation will be. Attorneys must spend more time reviewing evidence, preparing paperwork, and appearing in court.

While no two cases are the same, mediating a complex case can result in greater savings in costs and time than mediating a simple case. There is more that can be streamlined by bypassing the adversarial system. Spouses who agree to exchange information informally, for example, can save the cost of paying attorneys to prepare formal discovery documents. Admittedly, in a high-net-worth situation, this requires a high level of trust, but it can succeed if both spouses are honest and open.

Here are a few more tips about meditating a complex divorce:

Address Child Custody First

For couples with minor children, the parenting schedule will be critical to success as a restructured family. If you are generally in agreement about how you wish to divide parenting time and where your children will live, then you may be able to settle your custody issues before moving on to financial issues. If you believe that reaching a satisfactory long-term parenting arrangement will take some time, try to reach a temporary agreement. This will give you some breathing room to move on to other issues.

Consider a Temporary Support Agreement

If one spouse is dependent on the other for meeting financial needs during the divorce process, a temporary agreement can prevent the need for temporary support orders from the court. Unlike final orders and agreements, temporary orders and agreements maintain the “status quo” until the divorce is settled. They do not address asset division but simply describe how each spouse will maintain the marital lifestyle to the maximum extent possible. Once these imminent needs are out of the way, you can focus more clearly on long-term issues.

Use Financial Experts Wisely

In a complex divorce case, there are usually issues that require opinions from expert witnesses, such as appraisers and business valuators. These experts often charge very high fees. An advantage in mediation is that spouses can agree to abide by the opinion of a single neutral expert, rather than hiring completing experts, as is typical in litigation. Spouses in mediation can also agree to save money by using more summary reports than the extremely detailed reports generally required for litigation.

Using a joint expert is not always the best choice. You may still prefer to hire your own expert if you can afford the fees and are confident that your expert will be better than your spouse’s. If you have a situation where a wide range of interpretations is possible, your own expert can interpret any ambiguous information in your favor. Of course, your spouse’s expert will interpret the same information in your spouse’s favor. Using individual experts in mediation means that if you get divergent opinions, you must agree on which opinion to accept. You can also agree to accept parts of one opinion and parts of another. Make sure to discuss your options regarding expert witnesses with your attorney before deciding how to proceed.

Consult Closely with Attorneys

In complicated cases frequent communication with attorneys during mediation is especially important. This can prevent mistakes from compounding to a point where repair is more difficult. Even intensive attorney consultation is generally less expensive than having attorneys file court papers and appear in court. It may be harder to settle an entire case in mediation if the case is very complicated, but even if you only succeed in taking one or two issues off the table, you may experience significant cost and time savings.

In our next post we will talk more about using experts in divorce mediation. Meanwhile, if you are ready to give mediation a try, contact us today.