It is axiomatic in a lawsuit that both parties have access to the same information. The Oregon courts in particular frown on trial by ambush or surprise. The legal process to ensure that both sides have the same information is called “discovery.”
In a family law case, I view discovery as creating a mutual inventory of the debts, assets and income of the marriage. Creating an accurate inventory is particularly important so that the assets, debts and income can be split by the parties, both spouses have assurances that all the property has been disclosed, and that nothing is omitted which will need to be dealt with later.
In traditional litigation, the state mandates that years of tax returns, bank and credit card statements and other financial records be produced from one spouse to the other. Attorneys often ask for information about insurance, investments, safety deposit boxes, and the list goes on and on and on. Sometimes, an attorney will find something unexpected, or even better, embarrassing. But, largely, this information just confirms what the parties know. In fact, it is a huge expense and not particularly productive, usually.
My process for establishing values is to request couples, separately, complete online forms and request the most recent values of things like bank accounts, amount left owing on a home, and credit card debt. My online forms are extensive (and easy to use). My process is to identify where there are differences. I do not collect reams of useless data.
The other thing to remember is that mediation is not about establishing facts. There must be some basic agreement going into the mediation. This is in stark contrast to litigation where two attorneys advocate for their own set of facts based on evidence submitted into the record, and then accepted or rejected by the judge or jury. Mediation is not a fact finding process in the way litigation is.
After the spouses have completed the forms, they both have access to the information the other provided. Where there are differences, we document the actual value. For example, if wife thinks that a particular bank account has $5000 and the husband thinks it has $10,000, they will need to produce a copy of a recent bank statement to verify the actual amount in the account.
My process assumes that the parties are dealing with one another in good faith and that neither spouse is hiding assets. If a spouse suspects that a spouse is hiding assets, then mediation is not appropriate. He or she will need the authority of an attorney to subpoena documents and to compel production. This means that an attorney will subpoena bank records or compel the attendance of a witness to help establish the value of assets. This option is not available through mediation.
What happens in mediation when one party refuses to provide documents?
Unlike in litigation, going through the courts, a mediator cannot compel either party to produce documents. In my practice, there will be discussions about how to value an asset or account. If there is no consensus during the mediation, I will make the final decision at the end of the day based on the best available evidence and giving the aggrieved party latitude to determine the value. In other words, there is risk in refusing to fully participate with the mediation process.