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Best Practices for Asset Mediation

By Christina L. Scott, J.D.

Mediating divorce cases involving high assets, creates a different dynamic than those cases involving custody. To reach resolution in these cases, parties must have a level of certainty about the financial issues. Below are a few key tips to keep in mind when preparing for an asset only mediation.

Complete all Discovery prior to mediation

The importance of having a clear financial picture cannot be overstated. The absence of relevant financial documents is a recipe for failure at mediation. If parties are to successfully negotiate finances, they must clearly disclose to one another all the assets and all the liabilities involved in the case. This means submitting all documents a few days prior to mediation so that there is ample time to review everything. The delay or refusal to turn over documents creates distrust among parties and this only harms the mediation process. If one party is not clear about the bank accounts, investment account balances, or pensions, owned by the other party, they will not be able to make a reasonable offer. If your client is slow to turn over documents, work with opposing counsel to select another mediation date. Mediation will be much more productive if you do.

Prepare a Marital Balance Sheet

In cases involving high or voluminous assets, the marital balance sheet is a must. The balance sheet focuses on valuing, distributing, and dividing all marital assets and liabilities. The existence of this document in mediation can greatly assist the mediator in her discussion with parties since the document can be used to try out various combinations of division. And because every lawyer I know went to law school to avoid math, the balance sheet does the calculations as well! Mediating a high asset case with a well-prepared balance sheet adds clarity, organization, and efficiency to the mediation process.

Consult with Financial Professionals

In high asset mediation, the expertise of a financial professional specializing in divorce is key. Beyond preparing the marital balance sheet, a financial advisor or accountant can provide expertise and education for all financial issues. They are particularly helpful to everyone when dealing with complex issues such as the income and tax implications of trust funds, transfers of restricted stock, bitcoins, business valuations and the like. I have found them extremely helpful when negotiations became stuck because of some participants’ erroneous information about investment accounts or funds. Most mediators and attorneys are not financial experts so having the expert at mediation can add real value and reduce the uncertainty of everyone involved.

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