Be Neutral
A Publication of the Georgia Office of Dispute Resolution

Case Watch: For Mediators

The following case analysis the first of a regular series we will publish to help neutrals broaden their knowledge of rulings of Georgia’s appellate courts that may affect your practice. Although the case is domestic, the general principles discussed here apply to all types of mediation cases. Remember: mediators should not give legal advice or opinions.

Review of 285 Ga. 706, Walton v. Walton, decided July 9, 2009. Appeal from ruling of Judge Cynthia Wright, Fulton County Superior Court.

Premarital contributions to real property are one of the most aggressive offsets that divorcing parties claim when dividing their assets. Parties seek these offsets more often in higher-income divorces. However, in smaller-asset cases, such offsets can be more financially damaging.  As a mediator, fairness dictates a close review of any supporting documents regarding premarital assets. While it may be intimidating for mediators to consider tackling a lot of financial documents, remember that the information doesn’t always support what the party claims.

Ruling 1: On appeal, the husband alleged the trial court erred by not considering his premarital contributions from his personal account to the down payment on the marital home.  However, the Supreme Court agreed with the trial judge. It found that the down payment on the marital home was actually paid from two accounts: a joint account of the parties and a personal account of the husband. Upon closer examination, it found that the husband’s personal account was created from funds from the parties’ joint funds. The transfer of funds into the husband’s personal account from the couple’s joint account did not make the funds the husband’s separate premarital property, the court said

Ruling 2: In Walton, the Supreme Court reiterated that equitable distribution of property does not necessarily mean an equal division. A court’s award is not erroneous simply because one party receives a seemingly greater share of the marital property, the court said.

The Lessons: These rulings offer strong arguments mediators can use to “sell” the benefits of self-determination in reaching an agreement on distribution of assets. An agreement by the parties may be considerably more palatable to them than a judgment issued under the court’s broad discretion.  Walton is also an excellent case for mediators to remind spouses that if they are divorcing stay-at-home spouses, there is a great possibility that the stay-at-home spouses may get more from the court than the other spouses think.

Ruling 3:  The Supreme Court upheld the trial judge’s findings on alimony, child support, and a $50,000 award to the wife for her attorney’s fees.

The Lesson: Mediation would definitely have been cheaper. The $50,000 the husband was ordered to pay the wife’s attorney would have paid for a staggering 250 hours of mediation at $200/hour, which probably would have been a better investment.  We don’t know how much the husband paid his attorney for the privilege of losing at trial court and on appeal.

Overall, this case is a great example of why parties who reject compromise do so at their peril. Nothing went the husband’s way, either at the trial court level or the appeals level.  It illustrates the reality of what we as mediators have been stressing to parties as a basic mediation premise: ONE CAN NEVER CONTROL OR PREDICT WHAT A JUDGE OR JURY WILL DO.


Mary Ellen Cates is an attorney and registered mediator in Avondale Estates, Ga.  She has practiced domestic law exclusively since 1985.  A divorce mediator since 1998, she is also a domestic arbitrator, and she has been appointed as special master for DeKalb County Superior Court.

Phone: 404-292-3803; fax: 404-292-1510; or