Can Complex or High Net Worth Cases be Mediated?
If the issues involved include a business, complex tax issues, separate property or tracing issues, or other complex financial issues, divorce mediation may be particularly problematic.
- How is a business valued in divorce mediation? Experts are necessary to value a business unless the value is not important to the parties or the parties elect to guess at the value. A divorce mediator will not have the skill required to value the business. Even if the business is valued by an impartial and qualified expert, will both parties understand the nuanced financial issues related to the business appraisal? Will both parties see the discretionary decisions made by the appraiser and understand their significance?
- Will the family CPA be required to assist with financial issues in the divorce mediation? Is the family CPA “loyal” to one party, or will they impartially assess tax and other financial issues? The family CPA will most likely not have experience in divorce valuations (which are very different than valuations in the real world) and they will almost certainly know which spouse they will work with after the divorce, which may impact their opinions. The experience and training of the typical CPA is vastly different than that of a forensic accountant in family law.
- Do both parties have access to the same financial records and have the skills necessary to understand the records and concepts?
- Do both parties have the financial knowledge and experience necessary to understand the nuances of many divorce issues? Do both understand issues like separate property, tracing, commingling, transmutation, tax, imputation of income, etc. A divorce transaction is often complex. Family law is generally not as simple as dividing assets 50/50 and plugging numbers into a computer program.
- Do both parties have comparable negotiating experience and skills? Divorce mediation is a negotiation from the beginning to the end. There is a reason why tens of thousands of books have been written and countless courses have been taught about negotiation and negotiation theory. The better negotiator generally wins the mediation.