Another Reason To Mediate Your Dissolution

Husband argued to the trial court that the agreement was not enforceable because of the lack of timely disclosure of finances and property, i.e., the parties did not exchange required disclosure information before they reached an agreement in mediation. The Family Code has extensive requirements for parties in a litigation to disclose both financial information and property information. Unlikely any other type of lawsuit, family law mandates each party to voluntarily provide the other party with information and to update and amend that information whenever there is a material change. So, in essence, disclose, disclose … and disclose even more.

Given this requirement, it appears Husband had a good chance of getting the agreement thrown out because it was, in fact, reached before the disclosure was exchanged. The trial court said ‘no’, the agreement stands. The appellate court agreed with the trial court and said that parties who resolve their case in private mediation versus contested litigation need not comply with the strict technical requirements of the disclosure codes (Family Code, §§2104 and 2105). The court went on to say that there is a public policy (code for of paramount importance) for the disclosure sections. However, when parties engage in an alternative summary proceeding (like private mediation), they need not comply with the technical requirements before doing so because there is also a strong public policy in favor of alternatives – such as mediation and arbitration. In fact, even the California Supreme Court recognized, mediation [is] a form of alternative dispute resolution encouraged and, in some cases required by, the Legislature. (Foxgate Homeowners’ Ass’n v. Bramalea California, Inc. (2001) 26 Cal.4th 1. Implementing alternatives to judicial dispute resolution has been a strong legislative policy since at least 1986. In that year, the Legislature enacted provisions for dispute resolution programs including, but not limited to, mediation, conciliation, and arbitration, as alternatives to formal court proceedings which it found to be ‘unnecessarily costly, time-consuming, and complex’ as contrasted with noncoercive dispute resolution. (Bus. & Prof.Code, §§ 465, 466.)

Therefore, the court held that in these alternate approaches to resolve disputes arising out of a marital dissolution, compliance with the technical disclosure would weaken the strong policy of allowing and encouraging parties to choose a different approach to resolving their conflict, thus, the strict compliance with Family Code, §§2104 and 2105, is not required.