I’m working with divorcing clients, and Wife is sharing information about her budget. Husband refuses to do the same. I ask whether he has concerns about providing such information, and he is not forthcoming. He has the facts and figures, but won’t tell us about them, bring in financial statements, etc. To make a long story short, Husband will not fully participate in the mediation process.
Mediation is a voluntary process, and it is the parties who make the decisions: Will they schedule a mediation session? After the first one, will they return for the next? Will they reach agreements? Each party makes these choices for her/himself.
Similarly, each party – each spouse in this example – decides whether to share information about earnings and expenses, assets and liabilities. Once in awhile, a party decides not to.
A mediator has no authority to compel parties to provide information; s/he is unlike a judge in this way. If a party won’t share it voluntarily, all the mediator can do is:
- explain once again why giving the information is necessary (so that all parties will have enough information to make decisions);
- explain that the mediation will have to be terminated if the party doesn’t change his/her mind; and then,
- end the mediation.
In my experience, unwillingness to provide information most often becomes apparent during the first phone call or at the consultation; in other words, prior to any session being scheduled. If it happens over the phone, that part of the conversation usually goes something like this:
- Mediator: In mediation, you would both need to share information with me and the other party. Do you think that you and your spouse would be willing to do this?
- Potential Client: No, s/he will never go for that.
- Mediator: Perhaps you can talk this over with your spouse; or, s/he is welcome to call me, so that we could talk, just like you and I are talking now.
- Potential Client: It would be a complete waste of time.
- Mediator: From what you’ve just told me, mediation is unlikely to work in your situation. Sometimes, a spouse will be more flexible and open once the process begins. But, just based on what you’ve shared, mediation doesn’t sound promising.
- Potential Client: No, but thank you for your time and explaining all of this to me.
A crucial aspect of mediation is ‘informed decision making’. When a party withholds information, the other party is unable to fully know what the situation is, and would be deprived of the opportunity to make thoughtful decisions. To work (or continue working) with parties under these circumstances would be unfair to the party denied the information. Mediation is not appropriate; if the process has started, the mediator must end it.
All blog posts are for informational purposes, and should not be considered as legal advice.