A presentation by Just Mediation, LLC Helping People Tackle Problems Instead of Each Other

Transcription

1 A presentation by Just Mediation, LLC Helping People Tackle Problems Instead of Each Other 2010 by Just Mediation, LLC, for more information:

2 What are my options? And how do I choose? Just Mediation, LLC, for more information:

3 FAIR Need to protect both spouses and children, now and in the future Need to embrace values and unique circumstances of the individual family COMPREHENSIVE Need to provide workable roadmap for present and future needs Need to provide closure and finality COST EFFECTIVE Need for efficient, streamlined process Need to ensure that optimum use has been made of services engaged OTHER GOALS Protect privacy Support spouses and children through the divorce transition Provide a more positive framework for future dealings

4 DIVORCE IS A SERIOUS LEGAL MATTER! Legal rights need to be protected Divorce has long term consequences Penny Wise can be Pound Foolish HOW CAN I KNOW WHAT LEVEL OF PROTECTION I NEED?

5 LITIGATED DIVORCE COLLABORATIVE DIVORCE MEDIATOR ASSISTED DIVORCE THE ORIGINAL COST-CUTTER (Just one lawyer) PURELY DO-IT-YOURSELF, WITHOUT ASSISTANCE

6 A DIVORCE SOLUTION IDEALLY WILL BE FAIR TO BOTH PARTIES REFLECTIVE OF FAMILY S INDIVIDUAL NEEDS, CIRCUMSTANCES, AND VALUES PROVIDE FINALITY (COMPREHENSIVE, ENFORCEABLE) WORKABLE COST EFFECTIVE

7 Most divorce cases will be settled through negotiation, using either mediators or attorneys! The issue is not whether, but when, negotiation or mediation will occur. The crucial questions are: How much assistance do I need from attorneys and the judicial process for this life changing event? and Do I settle my case before, or after, legal procedures have been set in motion and with, or without, attorney guidance?

8 LITIGATED DIVORCE Attorneys direct the show Engage in Discovery (interrogatories, requests for admission, depositions) Attorneys may not want to mediate, but court requires it TWO ATTORNEY DIVORCE Prepare for trial Settle sometime prior to court Attorneys direct process, negotiate, and decide when to call in a mediator MEDIATOR FACILITATED DIVORCE Agree to fairness Agree to full disclosure Use unbundled legal services to assist parties

9 Some cases require much more assistance than others with either legal advice, judicial process, or both How can I tell in advance how much assistance I will need from the court system? Just Mediation, LLC, for more information:

10 Power Balanced / Umbalanced Need for assistance from judicial process depends largely on balance of power Bullying, as manifested by withholding of information threats demands out of proportion to need Just Mediation, LLC, for more information:

11 Need for advice from attorney depends on degree of awareness of personal values and law Do you have the information you need to make an informed choice about your divorce settlement? Do you know what you want? Are you aware of what you would be entitled to? What more information do you need to make a sound decision? Just Mediation, LLC, for more information:

12 Power balanced They re not trying to take advantage, but I don t know my rights or needs Both sides understand needs and rights, both are committed to fairness Power unbalanced Don t know my rights or needs and other side is trying to exploit me Know my rights or needs, but the other side is bullying or threatening me Aware of options Unaware of options

13 COLLABORATIVE DIVORCE Parties need guidance from attorneys but do not need judicial process MEDIATED DIVORCE Mediator can empower self aware, equal parties to forge their own agreement Even power balance but parties unaware of rights High awareness as well as good power balance Power unbalanced and also parties lack information High awareness but power is unbalanced LITIGATED DIVORCE WITH OR WITHOUT SETTLEMENT Need attorneys and judicial process LITIGATED DIVORCE WITH SETTLEMENT Need power of judicial process to balance scales of justice Just Mediation, LLC, for more information:

14 If your relationship is in either of the lower of the two descriptions in this triangle, you should not attempt to negotiate your divorce without the help of an attorney. When power is not balanced in a relationship, the force of the law is necessary to protect the rights of the less empowered spouse. The further down on the triangle your relationship is, the more intervention and assistance you will need from the court system to ensure fairness of result. Both spouses are honest, candid and willing to make full disclosure, committed to fairness in the process and result, want the best for the other person (but fairness for themselves). There may be some degree of distrust of other spouse, desire to withhold information or suspect spouse is withholding information. One spouse is secretive or hoards information, is manipulative, physically or emotionally abusive, actively attempts to dis-empower other spouse and prevent equal access to resources or information

15 Divorce Mediation Utilizing Attorney and Legal Process If you feel you are in the bottom tier on this triangle, then you need the services of an attorney and judicial process to ensure that power is balanced during your divorce negotiations. This is not to say that your divorce cannot be mediated. Rather, your attorney will utilize legal tools such as financial discovery, to balance access to information and increase confidence and ability to negotiate. Most divorce cases that go through the court system are, eventually, settled through mediation, but only after full discovery and financial disclosure has been completed. Both spouses are honest, candid and willing to make full disclosure, committed to fairness in the process and result, want the best for the other person (but fairness for themselves). There may be some degree of distrust of other spouse, desire to withhold information or suspect spouse is withholding information. -One spouse is secretive or hoards information, is manipulative, physically or emotionally abusive, actively attempts to dis-empower other spouse and prevent equal access to resources or information

16 Collaborative Divorce If you are in the middle tier of this triangle, judicial process may be needed, but perhaps can be avoided if both spouses commit to and participate in full disclosure. The assistance of an attorney is helpful in cases falling in the middle, to ask the hard questions and pursue full disclosure. Collaborative Divorce is the best option for cases where power is balanced and both spouses are committed to fairness, but they re not quite sure what is fair, when spouses want to have attorneys negotiate on their behalf... Both spouses are honest, candid and willing to make full disclosure, committed to fairness in the process and result, want the best for the other person (but fairness for themselves). There may be some degree of distrust of other spouse, desire to withhold information or suspect spouse is withholding information. One spouse is secretive or hoards information, is manipulative, physically or emotionally abusive, actively attempts to dis-empower other spouse and prevent equal access to resources or information

17 Mediator Facilitated Divorce using unbundled legal services and other professional services If you and your spouse are both willing to make full disclosure, if you both seek to be fair, and you want to do what is best for the family regardless of what a court of law might order, then mediated divorce may be a good option for you. Either or both spouses may consult an attorney at any stage and involve the attorney in negotiations. And, an attorney may be utilized to formalize the divorce agreement into a final divorce decree. Financial, counseling, and other experts are utilized as needed to assist the family in making adjustments and reaching agreements. Both spouses are honest, candid and willing to make full disclosure, committed to fairness in the process and result, want the best for the other person (but fairness for themselves). There may be some degree of distrust of other spouse, desire to withhold information or suspect spouse is withholding information. One spouse is secretive or hoards information, is manipulative, physically or emotionally abusive, actively attempts to disempower other spouse and prevent equal access to resources or information

18 A FULLY LITIGATED, ADVERSARIAL DIVORCE WITH TEMPORARY AND FINAL COURT HEARINGS Parties engage in court ordered Discovery, including Interrogatories, Requests for Admission, and Depositions Private investigators and financial experts are utilized, deposed, and testify A Guardian Ad Litem is often utilized to investigate and testify concerning what is generically labeled child custody Temporary and Final Court Hearings are held The court calls the shots and makes the decisions Attorneys give clients advice, and operate within the analytical framework of positions that are largely determined by what a court would order Cost: $15,000 - $40,000 per side

19 FULLY LITIGATED, ADVERSARIAL PROCESS THAT SETTLES AHEAD OF COURT DATE Parties engage in court ordered Discovery, including Interrogatories, Requests for Admission, and Depositions Private investigators may be utilized and deposed Financial experts are utilized and deposed A Guardian Ad Litem is often utilized to investigate and report Temporary hearing is held, with terms of order decreed by judge Whatever is ordered in the temporary hearing becomes the status quo The court calls the shots and makes the decisions until Evaluative style mediation occurs just prior to final hearing is used to generate attorney / judicially-oriented settlement options Cost: $10,000 - $20,000 per side

20 COLLABORATIVE DIVORCE: AN ATTORNEY-DIRECTED PROCESS Parties each retain their own, collaboratively trained attorney Parties agree to principles of fairness and full disclosure The parties agree to share and take advantage of expertise of subject matter experts, such as accountants and child specialists The attorneys may recommend individual helpers such as divorce coaches or vocational rehabilitation experts The parties, and all professionals, agree to settle the case out of court Attorneys direct the process and negotiate on behalf of clients Average cost: $5,000 - $10,000 per side, depending on services needed

21 MEDIATOR ASSISTED DIVORCE AGREEMENT UTILIZING UNBUNDLED LEGAL SERVICES Parties commit to principles of fairness and agree to full disclosure A transformative style mediator assists the parties in understanding their conflict better, in developing processes for resolving conflict, and in reaching agreement that will become their divorce decree Experts are engaged as needed to assist parties in reaching fair, comprehensive agreements covering every aspect of their divorce: financial and tax experts, child psychologists, individual therapists, vocational experts, and attorneys to whatever extent they are needed Cost: $500 - $4,500 per side, depending on services needed

22 THE ORIGINAL COST CUTTER: JUST ONE LAWYER The parties agree between themselves on terms of settlement and engage an attorney just to draft the agreement The attorney can only represent one side. The non-hiring spouse is unrepresented or engages a different attorney on an hourly basis to review the settlement papers There is no mechanism for disclosure or discovery of financial assets Outside experts are not utilized for help in formulating financial or parenting plans or for adjustment and re-employment issues If talks break down, divorce becomes contested and both sides must hire lawyers Cost: $1,500 - $3,000 per side, unless the process falls apart

23 DO-IT-YOURSELF DIVORCE Parties reach agreement by themselves Parties draft their own agreement Parties file their own court papers, and appear in court pro se Parties may receive advice from an attorney on an hourly basis Cost: about $150 - $500 per side (depending on legal services hired)

24 Fairness Custom Fit Comprehensive Practical Cost Effective Just Mediation, LLC, for more information:

25 LITIGATION COLLABORATIVE UNREPRESENTED MEDIATION In theory is fair because decisions are made after full hearing on facts, each party is represented by counsel, and the court is neutral. In practice, litigation is fair only if both sides have relative balance of resources Fairness is almost guaranteed, because there is full disclosure, examination of facts by financial and other experts, and each side is represented by an independent advocate who gives evaluative advice Fairness is at serious risk, because there is no commitment to fairness, no provision for disclosure, and attorney hired by just one party owes a duty of zealous advocacy on behalf of that client Fairness is present, but only if both spouses are committed to fairness and full disclosure AND if power is balanced in relationship AND both parties have resources and awareness to know what they want or what they are entitled to Just Mediation, LLC, for more information:

26 LITIGATION COLLABORATIVE UNREPRESENTED MEDIATION Solution ordered by judge will take into account special needs and circumstances, but will be limited by legal remedies and whatever is typically ordered by courts in those circumstances Solution can be custom tailored and may utilize expertise of professionals. Because process is typically directed by attorneys, solutions may vary according to degree to which attorneys impose legal remedies vs. empower clients to be creative Although parties may be quite sophisticated, more often than not the parties will not have knowledge of full range of options that are available Solutions can be custom tailored and may utilize expertise of professionals. Solutions hopefully will be tailored to meet agreed needs of parties 2010 by Just Mediation, LLC, for more information:

27 LITIGATION COLLABORATIVE UNREPRESENTED MEDIATION Judges are experts in divorce and do order comprehensive solutions. However, items can be overlooked, and contingencies are not planned for (e.g. parties will have to return to court to modify support orders if circumstances change) Collaborative practitioners are experts & will draft a comprehensive agreement that will cover future contingencies. Unlike winning parties in litigation, collab attorneys will revise agreements until they reflect the true intention of parties Most parties choosing this option either do not have a need for, or are not aware of their need for, a comprehensive divorce agreement Quality of a mediated divorce agreement depends upon drafting skill of mediator. Securing review by independent attorneys provides feedback and quality by Just Mediation, LLC, for more information:

28 LITIGATION COLLABORATIVE UNREPRESENTED MEDIATION While court orders may not be custom fit, the advantage of standard remedies is that enforcement is through well established procedures The practicality of agreements arrived at through collaborative divorce is likely to be well thought out, by virtue of the legal and expert-oriented process through which the agreement is made Unrepresented litigants are likely to overlook potential pitfalls in their agreements The practicality of agreements arrived at through mediation depends upon the skill of the mediator and the integrity of the process. When experts have been utilized to suggest remedies and test the agreement, likely to be practical 2010 by Just Mediation, LLC, for more information:

29 LITIGATION COLLABORATIVE UNREPRESENTED MEDIATION Because it involves two entire teams of professionals (his and hers), escalates conflict through adversarial proceedings, and utilizes time consuming Discovery and hearings, litigation is the most expensive option Although collaborative utilizes two attorneys, most other professional fees are shared, and expensive adversarial proceedings are avoided altogether (no Depositions, no hearings, no Interrogatories, etc.) Much less expensive This is the least expensive option, and also carries the greatest risk of a poor result in a major life transition, setting the stage for years of bitterness and regret, if not actual hardship Mediation with involvement of experts to guide important decisions, and assuming both parties are committed to fairness and full disclosure, is cost effective. Without such guidance, mediation carries the same risks as unrepresented divorce by Just Mediation, LLC, for more information:

30 1. LITIGATED DIVORCE 1. FULLY LITIGATED, ADVERSARIAL DIVORCE WITH TEMPORARY AND FINAL COURT HEARINGS, OR 2. FULLY LITIGATED, ADVERSARIAL PROCESS THAT SETTLES AHEAD OF COURT DATE 2. COLLABORATIVE DIVORCE: Divorce negotiation directed by attorneys and assisted by neutral experts, with an (enforceable) agreement not to go to court 3. MEDIATOR ASSISTED DIVORCE UTILIZING UNBUNDLED LEGAL SERVICES 4. THE ORIGINAL COST-CUTTER: Just one lawyer 5. PURELY DO-IT-YOURSELF, WITHOUT ASSISTANCE

31 Getting all parties to the negotiating table is the first, and sometimes the most challenging, task for the mediator or negotiator The same approaches to solving problems will not work. You know this, because you ve already tried the tools in your own tool kit. If you got along, you wouldn t need a mediator or negotiator. If you propose a collaborative divorce or mediated divorce, the mediator or attorney will be happy to contact your spouse and send information Just Mediation, LLC, for more information:

32 WHAT ARE MY DIVORCE OPTIONS? IN CONCLUSION: Divorce is very serious, with long term consequences for you and every member of your family The same solution does not fit everyone Choose carefully depending on your circumstances, paying special heed to your need for directive advice and your need for help balancing power In collaborative or mediated cases, your attorney or mediator can help with convening A presentation by Just Mediation, LLC Helping People Tackle Problems Instead of Each Other For more information about mediation or conflict transformation in general, please see Thank you for your time! Just Mediation, LLC, for more information: