Mediator Selection – When Marriage and Business are Combined

In recent years I have noticed a developing trend in divorce mediation. Specifically, there are many more marriages where the parties are also business partners. I first noticed this in my mediations involving married parties from other cultures; notably Asian, Hispanic, and Caribbean. Later, I noticed the same trend in those born in the United States. The businesses involved have been varied. Real estate companies, contractors, landscaping companies, restaurants, retail operations, and services, tend to make up the majority of the businesses in the cases I have seen.  A few have been professional practices. Most of the time there are business aspects that fall outside of the general domestic relations mediator’s knowledge or comfort level. The clients who come or have been directed to me know that I have experience in the corporate business world as well as the domestic relations area. In some cases, I have provided useful insight to the attorneys who are not accustomed to handling the business aspects of divorce, as they try to make certain they have been thorough in their representation. This is only one reason an advocate might want to seriously consider mediating in a divorce case where the clients are also in business together.

Business Continuity: Mediation is often beneficial and desirable where marriage and business have been combined because of the need to keep the business functioning as smoothly as possible during the transition, and because of the creativity, flexibility, and efficiency possible in the mediation process. There are some businesses where the parties remain partners or associated even after divorce. Actions and decisions needed in connection with the business operations can happen much more quickly and planning facilitated in the mediation process. On the other hand, when the parties want to terminate the business relationship, there are still decisions that need to be made preferably, with cooperation so as to minimize any negative impact on both parties. In order to get the most out of such mediation, a mediator knowledgeable in business and domestic relations should be selected by the parties. Such a mediator can draw from other similar cases and increase the options the parties can explore. There is another benefit.

Available Business Neutrals: Many times in these cases each of the parties have their own financial advisor in connection with the evaluation of their business interests. Often, if needed, a financial neutral that works with a mediator can provide useful input that enables the parties to get beyond impasse and develop a creative, mutually agreed upon resolution. Such a neutral is often acceptable to the parties since he or she is suggested by the mediator and not by either of the parties or their attorneys. In addition, the neutral financial has no particular allegiance and therefore the freedom to come up with what is likely to be a mutually acceptable resolution.  This route is often much more appealing and less costly than pursuing litigation.

Advocates’ Value: Today’s clients, particularly those engaged in businesses, are much more comfortable with negotiation, and with their lawyers who can assist them to reach their desired goals in this process. The clients retain more control over their fate and often feel more like they are receiving true value for their money, than when they leave everything to their lawyers and judges to resolve. I have seen on several occasions where the clients begin to take more active roles in their cases during the mediation. When this occurs, they are less likely to blame any perceived negative results or impact on their attorneys afterwards.  In addition, the developing sense of partnering with his or her attorney serves to enhance the positive image of the specific attorney, and the legal profession in general.

Minimizing Emotional Impact:  Another benefit is the particular skill of the mediator who is accustomed to handling business and domestic relations cases in the delicate balance of getting the parties to transition and change focus from emotional domestic relations issues to negotiation of business elements, then back to domestic relations issues with less emotional content. This can happen when the mediator is skilled at extending and maintaining the productive business negotiation environment to the generally more emotional domestic relations discussions. It is not that domestic relations mediators are unable to do this, it’s just that mediators who do both and have the experience with handling business and domestic relations issues simultaneously, have much more to draw from due to experience as well as knowledge and training, and can do so easily and efficiently.

So, the next time you have a case where business and marriage dissolution issues are combined, try engaging the services of a mediator experienced in handling both. See for yourself whether there are advantages in doing so.

Donita King

Ms. King is a member of the Virginia, Pennsylvania, and D.C. State Bars. She also serves as a University of Richmond School of Law Adjunct Professor of Mediation. She previously served on the Virginia Bar Association Joint ADR Council (2015 Chair), and served for several years on the Governor of Virginia’s Interagency Dispute Resolution Council. Ms. King currently serves as a board member of the Virginia State Bar Disciplinary Board by appointment of the Virginia Supreme Court and has been active with the Hispanic Chamber of Commerce, Hispanic Women in Business as well. Se habla espanol.

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