There is one local lawyer in San Diego County who specializes in bashing the legal profession, and bragging about the ability to handle a complete divorce in a day: Mediating a settlement, gathering the financial records, drafting all the documents, having an agreement signed, and the case ready for filing with the court. Sounds attractive - especially if you are rushing to get an agreement signed.
That attorney brags of a 100% success record. Unfortunately, the claims are not justified by experience. While that attorney may be able to claim to have talked the parties into a settlement and signed most of the documents in that day, not counted in those bragging rights are the many cases that have later been set aside by a judge or by stipulation because they were unfair, or entered into without sufficient understanding of the law or facts. The same person instills fear in potential clients by telling them that letting some other lawyer near their case will end up costing them tens of thousands of dollars, making outrageous claims of the cost of the average divorce.
And the saddest part is that the work is of low quality, and often could have been handled more competently at lower cost. Two mature, reasonable people, can mediate with a competent mediator inexpensively, and do it right: They don't need to pretend they can or should wrap it all up in a few hours. Typically in my practice, we meet 2 or 3 times over several months; by the time we are done, each knows his or her rights and feels comfortable with the agreement. And we strongly suggest they at least consult with an attorney before signing.
As a concept, it sounds nice that two reasonable people who know what they are doing can go to an attorney, polish the rough edges off their agreement, and have all the paperwork completed quickly, efficiently, and cheaply. Unfortunately, that isn't what happens in practice when they try to do it in a day. One of the things I complain about in this blog is people with insufficient education and training performing mediation in the guise of protecting people from the legal profession and their own inability to reach agreements on their own.
Mediation isn't a quick process. If the parties already know what they want to do, the big issue for me as mediator is to ensure they both understand the legal and practical effect of what they are doing. I don't like them leaving my office not knowing their rights. I am trying to do more than just bang out an agreement - I want them to leave believing it fairly addresses their concerns and that they have considered the options.
For the last two decades as part of the divorce process, in California, we have been increasing the level of disclosure that each party is required to make about their individual and joint finances. Among those requirements are detailed declarations of disclosure listing all the known assets and debts, with attached copies of title documents and statements to enable the parties to know what they have and whether their assets have value.
Rarely can these declarations be completed satisfactorily the first time the parties show up in the mediator's office, yet the divorce cannot legally be processed without them. Even in normal mediation over a period of 2 or 3 meetings we often have difficultly getting the parties to produce copies of all the necessary documents by the 2nd session after giving them a list of things to bring back. How can you expect them to show up the first day with everything that is needed? You can't.
How do the divorce in a day advocates solve the problem? They often don't. Sometimes they just ignore or bend the requirements. We have seen cases where they have parties declare, under penalty of perjury, that they have exchanged declarations that never existed. Sure, it makes the process move quickly. It just isn't legal, and isn't safe for the party who lacks knowledge of the parties' finances. Declarations of disclosure aren't a formality: They are a legal requirement. And at the very least should be a practical requirement for anyone entering into a marital settlement agreement.
If you want to keep things inexpensive, the last thing you want to do is end up litigating a motion to set aside a marital settlement agreement. Without proper declarations of disclosure, the agreement will be pretty easy to set aside. You may have changed your circumstances in reliance on the agreement - spent the money or bought an asset that has changed in value, for example. Defending your position can be very important to you, and thus expensive.
More important, however, is that in a few hours you don't have time to consider the effect of the agreement on your future; you don't have an opportunity to talk to your own advisor, attorney, or CPA or family; you don't have the time to examine the documents even if they are presented. You don't know what other options are available to you, and you don't have time to consider whether the agreement is fair. You may tend to rely on the mediator to protect you, when that is not his or her job. And you certainly don't have time to find out whether the mediator has substantial biases and prejudices.
If you have assets, do you really know what they are worth? Do you know as much about them as your spouse? Are you giving up pension rights in return for something else? Are you giving them up just because you didn't know you could get them, or you didn't think they had much value? Do you really know what rights you have under the law? Do you have equal bargaining power with your spouse, including an understanding of your respective emotional needs and problems and how they impact the negotiating process?
Do you have the time and experience to understand whether the mediator is fair, or jsut claims to be? Or test the advice he or she gives you by talking it over with your friends or another attorney? Of course you don't.
A good mediator ensures that all of the rules are followed [and he or she knows what they are], is conscious of the power differences between a husband and wife getting a divorce, and works to ensure that both parties know their options and their rights. In the end, a competent mediator's agreement is fair, meets the needs of the parties, and much more likely to stand the test of time. And, it may be cheaper in the long run.
