Many people, thankfully, are looking for a less emotionally charged way to divorce. I say thankfully because a long drawn out court battle leaves everyone drained, financially and emotionally, and is always harmful to children. So I commend anyone who seeks an alternative to a messy court battle, even in cases where emotions run high and there are many financial and child related issues to be resolved. However, in their desire to keep things low cost and low emotion, couples and individuals may cut too many corners and not seek necessary legal or financial advice. Since a divorce settlement, in most cases, impacts the rest of their lives, the results can be disasterous.
Many people, even those who strive for an amicable resolution, still believe divorce is an "all or nothing" concept. The parties either hire lawyers or they do it themselves. There are a host of online websites and companies offering "do it yourself" divorces for a small fee. The people utilizing these services are not just those with little income. In many cases, individuals and couples in higher income brackets are so frightened by the potential cost of divorce that they opt for these seemingly cost effective solutions, not realizing the high cost that may result later on due to an incomplete or unfair settlement.
Those facing divorce need to be aware that there are other options. While parties may be able to do their divorce themselves, through mediation or, in some cases, by filling out the paperwork themselves, there are many reasons to consult with a lawyer beforehand, or, at the very least, before signing any agreement.
For couples using the "pro se" mediation process, where a neutral mediator helps the parties reach an agreement, consulting with a lawyer and/or a financial advisor may be a crucial first step to help the party determine what his/her legal rights are and what the financial picture would look like. Many times in mediation, one person has a greater understanding of the parties finances. The other person may not even work at all and may have no idea of what their expenses will be. If this person were to enter into an agreement providing for little or no support, he or she may be left in a compromised financial situation. As a mediator, I encourage parties to do this both before mediation and before signing an agreement.
Many people are concerned that, by "involving lawyers", they will end up in court, paying a great deal in fees. But this does not have to be the case. Each party can consult with a lawyer, as many or as few times as needed, and pay for the lawyer's services on a per-visit basis. Some lawyers will not do this, but there are many that will. For those who opt for the "pro se" route, it is important to seek out the legal advice they feel they need. It is also important to get information about the lawyer before going to an intial meeting, such as, how much time the lawyer will spend evaluating the case and going over options, and, if so, what the fee will be.
Divorce, like many aspects of life, does not have to be an all or nothing proposition. In too many instances, the all or nothing approach can leave a party with little or nothing or less than a fair share. While do it yourself may work for home improvement, it may not be the best course of action for dissolution. Before deciding to "go it alone", anyone facing a divorce should make sure he or she has enough knowledge and information to make the important decisions that will impact the rest of their lives.
Monday, October 29, 2007
Thursday, October 25, 2007
Miami-Dade County Family Court Approves Collaborative Practice
In an Administrative Order signed October 19, 2007, Chief Judge Joseph Farina signed an Administrative Order authorizing the collaborative process dispute resolution model in all dissolution and other family related matters.
The Order follows on the footsteps of a Brevard County Judge who recently signed a similar order. Although the Miami Dade County Court differs somewhat from the Brevard Court in that Miami-Dade does not have allow any Court intervention in a collaborative matter and has not, as other Courts have done, allow parties in a collaborative matter for either file a proceeding with the Court or resolve any temporary issues which may arise. Other courts have followed the lead of San Diego in establishing a collaborative court to resolve disputes which may arise during the collaborative process. Miami Dade has opted to keep the court completely out of the process, until such time as the parties either reach agreement or the process breaks down. The Administrative Order does provide that any temporary agreements reached by the parties will be ratified by the Court if the process breaks down and the parties proceed to litigation.
The Order also authorizes withdrawal of the parties attorneys in the event the process breaks down. This aspect of collaborative practice has been criticized by many Collaborative Law skeptics and ruled unethical by the Colorado Bar. The Miami Dade Order appears to endorse this aspect of Collaborative Law by requiring withdrawal of the parties attorneys in the event the process breaks down.
The Order also provides some guidelines for the financial and mental health professionals who are sometimes retained as part of the collaborative process.
Although the Florida Bar has yet to fully endorse or pass any collaborative law statute to date, it appears that the Florida Courts are clearly in favor of a collaborative alternative to the traditional model of divorce, which has been sharply criticized by these Courts in cases where excessive and expensive litigation has resulted.
The Administrative Order comes as a surprise and a tremendous positive gain for Collaborative practitioners, who have struggled with gaining judicial recognition for Collaborative Practice. It remains to be seen whether Broward County will follow suit, so to speak, with a similar Order and whether the Orders of the Courts will gain the attention and recognition of the Florida Bar, allowing this much needed alternative to gain legal recognition and, most importantly, regulation.
The Order follows on the footsteps of a Brevard County Judge who recently signed a similar order. Although the Miami Dade County Court differs somewhat from the Brevard Court in that Miami-Dade does not have allow any Court intervention in a collaborative matter and has not, as other Courts have done, allow parties in a collaborative matter for either file a proceeding with the Court or resolve any temporary issues which may arise. Other courts have followed the lead of San Diego in establishing a collaborative court to resolve disputes which may arise during the collaborative process. Miami Dade has opted to keep the court completely out of the process, until such time as the parties either reach agreement or the process breaks down. The Administrative Order does provide that any temporary agreements reached by the parties will be ratified by the Court if the process breaks down and the parties proceed to litigation.
The Order also authorizes withdrawal of the parties attorneys in the event the process breaks down. This aspect of collaborative practice has been criticized by many Collaborative Law skeptics and ruled unethical by the Colorado Bar. The Miami Dade Order appears to endorse this aspect of Collaborative Law by requiring withdrawal of the parties attorneys in the event the process breaks down.
The Order also provides some guidelines for the financial and mental health professionals who are sometimes retained as part of the collaborative process.
Although the Florida Bar has yet to fully endorse or pass any collaborative law statute to date, it appears that the Florida Courts are clearly in favor of a collaborative alternative to the traditional model of divorce, which has been sharply criticized by these Courts in cases where excessive and expensive litigation has resulted.
The Administrative Order comes as a surprise and a tremendous positive gain for Collaborative practitioners, who have struggled with gaining judicial recognition for Collaborative Practice. It remains to be seen whether Broward County will follow suit, so to speak, with a similar Order and whether the Orders of the Courts will gain the attention and recognition of the Florida Bar, allowing this much needed alternative to gain legal recognition and, most importantly, regulation.
Tuesday, September 18, 2007
Florida is one step closer to recognizing Collaborative Law
Brevard County Judge Issues Administrative Order Authorizing Collaborative Conflict Alternative Resolution Model
Following the lead of Judith S. Kaye, Chief Judge of the State of New York, Brevard Judge J. Dean Moxley recently wrote Administrative Order 07-20-B. The Order asserts the basic principle of collaborative law that the parties agree not to litigate any of their issues. By signing the Order,Brevard County not only recognizes and endorses the Collaborative Law Model as an alternative to traditional litigation, but also allows participants to abate existing Court proceedings and participate in the Collaborative process.
The highlights of the Administrative Order include the following:
1. A requirement for the candid exchange of information between the parties
2. The use of mental health and financial professionals to assist with the process
3. The Court will not set any hearings on a matter that has been filed yet designated a collaborative matter.
and
4. An acknowledgement of the confidentiality of the entire process.
The Administrative Order provides that, where a case has been filed, the parties are to provide status reports every 90 days. The Order differs from the traditional collaborative law model utilized by many Florida practitioners in that it allows parties to file a petition for dissolution. Most collaborative attorneys adhere to the rule that the agreement to keep the entire proceeding out of court means that neither party will file anything, including a petition, while the parties are in the process of negotiating.
Administrative Order 07-20-B also states the controversial yet crucial provision that collaborative attorneys are contractually required to withdraw from representation if the parties fail to reach an agreement. In February, 2007, the Colorado State Bar issued an ethics opinion stating that the agreement not to go to court is a violation of a lawyer's duty of representation to a client. The Brevard Judge sees it differently and feels, as do many collaborative proponents, that clients and their lawyers can enter into a valid contract that the lawyer will withdraw from representing the client if the case goes to court.
The Order is a strong endorsement for collaborative law in the state of Florida, which has been slow to give any legal recognition to the Collaborative process. To date, the Florida Bar has considered, although has not yet adopted, a Collaborative Law statute, and many judges have been wary of issuing opinions or orders endorsing the practice.
To read the text of the Adminstrative Order, visit www.flcourts18.org.
Following the lead of Judith S. Kaye, Chief Judge of the State of New York, Brevard Judge J. Dean Moxley recently wrote Administrative Order 07-20-B. The Order asserts the basic principle of collaborative law that the parties agree not to litigate any of their issues. By signing the Order,Brevard County not only recognizes and endorses the Collaborative Law Model as an alternative to traditional litigation, but also allows participants to abate existing Court proceedings and participate in the Collaborative process.
The highlights of the Administrative Order include the following:
1. A requirement for the candid exchange of information between the parties
2. The use of mental health and financial professionals to assist with the process
3. The Court will not set any hearings on a matter that has been filed yet designated a collaborative matter.
and
4. An acknowledgement of the confidentiality of the entire process.
The Administrative Order provides that, where a case has been filed, the parties are to provide status reports every 90 days. The Order differs from the traditional collaborative law model utilized by many Florida practitioners in that it allows parties to file a petition for dissolution. Most collaborative attorneys adhere to the rule that the agreement to keep the entire proceeding out of court means that neither party will file anything, including a petition, while the parties are in the process of negotiating.
Administrative Order 07-20-B also states the controversial yet crucial provision that collaborative attorneys are contractually required to withdraw from representation if the parties fail to reach an agreement. In February, 2007, the Colorado State Bar issued an ethics opinion stating that the agreement not to go to court is a violation of a lawyer's duty of representation to a client. The Brevard Judge sees it differently and feels, as do many collaborative proponents, that clients and their lawyers can enter into a valid contract that the lawyer will withdraw from representing the client if the case goes to court.
The Order is a strong endorsement for collaborative law in the state of Florida, which has been slow to give any legal recognition to the Collaborative process. To date, the Florida Bar has considered, although has not yet adopted, a Collaborative Law statute, and many judges have been wary of issuing opinions or orders endorsing the practice.
To read the text of the Adminstrative Order, visit www.flcourts18.org.
Wednesday, June 20, 2007
The Pros and Cons of Pro Se Mediation
Given the high cost of contested divorce litigation and its emotional aftermath, many people are opting for the pro se route. In South Florida, approximately 60% of divorce cases contain at least one unrepresented party. There is a growing market of services available to pro se divorcees, including the, quite sadly unregulated, online services which advertise "Do It Yourself" Divorce and other services for a fee far less than what an attorney would charge. But, as some of my clients have learned by engaging these “services” and receiving less than adequate results, you often get what you pay for.
Pro Se Divorce Mediation has emerged as another popular choice and has become a one stop shopping alternative in the vast array of lawyerless divorce methods. Although many family law mediators are attorneys, they are prohibited from giving legal advice when acting as mediators. However, mediators can prepare the forms which must be filed in conjunction with a divorce, including a marital settlement agreement. Pro se divorce mediation has received some much deserved criticism and some grudging recognition. There is a Florida Bar approved course for mediators to learn the complete process of pro se divorce mediation. But many lawyers continue to believe that pro se mediation is merely an ethics complaint waiting to happen.
Opponents argue that it is impossible to mediate a complete divorce agreement without giving legal advice and that pro se mediation will create an ethical dilemma where a lawyer-mediator is either forced to give legal advice, which violates that Rules For Certified and Court Appointed Mediators or to bite his or her tongue and allow parties to create either an incomplete agreement or one that does not protect the rights of one or both parties, which also violates the Rules.
Proponents, and the pro se public, seem to believe that a cost effective way to divorce is mandated. Many people can't afford to spend thousands of dollars litigating over their property, children or both, and many others do not want to. In many of these instances, the issues are relatively simple, from a legal standpoint. For instance, the parties are both salaried employees, earning similar incomes, and issues such as child support are reduced to a formula that can be calculated. Assets and liabilities are known to both parties and it is just a matter of who gets to keep (and pay for) what.
In cases that are more complicated, where there are more assets to divide, questions involving alimony, pension and social security benefits, valuation issues and/or parties who don't have knowledge of the entire financial picture. These parties are opting for mediation as well and presenting a challenge, if not a dilemma, for a mediator.
It appears that a hybrid solution might be necessary. Mediation can be a useful tool in helping parties resolve certain issues. However, the necessity of obtaining legal advice cannot be ignored either. Some divorcing couples are taking advantage of the limited representation now allowed by the Florida Bar and consulting with lawyers before, after and even during mediation. This allows the parties to negotiate without costly litigation and still receive much needed legal guidance as to their rights and responsibilities.
It is impossible to give an answer as to whether pro se divorce mediation is right or wrong. That depends on the particular case. But it is certain that the public is seeking alternatives to the traditional lawyer driven and costly divorce and that attorneys and mediators are seeking to balance accommodation of the public’s desire with their ethical responsibilities.
Pro Se Divorce Mediation has emerged as another popular choice and has become a one stop shopping alternative in the vast array of lawyerless divorce methods. Although many family law mediators are attorneys, they are prohibited from giving legal advice when acting as mediators. However, mediators can prepare the forms which must be filed in conjunction with a divorce, including a marital settlement agreement. Pro se divorce mediation has received some much deserved criticism and some grudging recognition. There is a Florida Bar approved course for mediators to learn the complete process of pro se divorce mediation. But many lawyers continue to believe that pro se mediation is merely an ethics complaint waiting to happen.
Opponents argue that it is impossible to mediate a complete divorce agreement without giving legal advice and that pro se mediation will create an ethical dilemma where a lawyer-mediator is either forced to give legal advice, which violates that Rules For Certified and Court Appointed Mediators or to bite his or her tongue and allow parties to create either an incomplete agreement or one that does not protect the rights of one or both parties, which also violates the Rules.
Proponents, and the pro se public, seem to believe that a cost effective way to divorce is mandated. Many people can't afford to spend thousands of dollars litigating over their property, children or both, and many others do not want to. In many of these instances, the issues are relatively simple, from a legal standpoint. For instance, the parties are both salaried employees, earning similar incomes, and issues such as child support are reduced to a formula that can be calculated. Assets and liabilities are known to both parties and it is just a matter of who gets to keep (and pay for) what.
In cases that are more complicated, where there are more assets to divide, questions involving alimony, pension and social security benefits, valuation issues and/or parties who don't have knowledge of the entire financial picture. These parties are opting for mediation as well and presenting a challenge, if not a dilemma, for a mediator.
It appears that a hybrid solution might be necessary. Mediation can be a useful tool in helping parties resolve certain issues. However, the necessity of obtaining legal advice cannot be ignored either. Some divorcing couples are taking advantage of the limited representation now allowed by the Florida Bar and consulting with lawyers before, after and even during mediation. This allows the parties to negotiate without costly litigation and still receive much needed legal guidance as to their rights and responsibilities.
It is impossible to give an answer as to whether pro se divorce mediation is right or wrong. That depends on the particular case. But it is certain that the public is seeking alternatives to the traditional lawyer driven and costly divorce and that attorneys and mediators are seeking to balance accommodation of the public’s desire with their ethical responsibilities.
Monday, May 14, 2007
Debunking Divorce Myths
DEBUNKING DIVORCE MYTHS
There are numerous misconceptions when it comes to divorce. Often, situations which could be resolved fairly amicably become highly contested because one of the parties is operating under the mistaken belief that the myth is actually the reality. Below are three of the most common misconceptions.
UNLESS I HAVE CUSTODY, I WILL ONLY SEE MY CHILD ON THE WEEKENDS
I hear this often from clients, especially fathers who are involved in the lives of their children and fear becoming the “weekend dad”. For some reason, parties seem to think their right to spend time with their children is “all or nothing”.
Regardless of whether there is a primary residence for children, the parties, except under extraordinary circumstances, enjoy shared parental responsibility of their children. This means that both share equally not only in decisions affecting their children, but in their children’s lives. For instance, if dad is the son’s baseball coach, dad can continue to do so and can attend all baseball games regardless of where the son spends his evenings. By the same token, mom can continue to participate in extra curricular activities, even if it is dad’s weekend with the children.
Rather than focus on the percentage of time spent with children, parties should consider their children’s schedules and the amount of quality time to be spent with children. Once parties realize that neither will be excluded from their children’s lives, it is often easier to create a schedule that works for everyone, especially the children.
I AM ENTITLED TO EVERYTHING
This happens in many cases where a spouse feels severely wronged by the actions of the other and thinks that he/she will receive the house, children, bank accounts and anything else of value while the other spouse will be awarded nothing more than the shirt on his/her back and the debts. This is not the case as Florida is a no fault divorce state. Unless there is a financial component to the wrongdoing of a party or another reason not to divide assets and liabilities equally, a judge will make an equal, or nearly equal division of assets and liabilities. While there are many reasons to deviate from this, the wrongdoing of one party, i.e., simply being a bad spouse, is not one of them.
THE WIFE ALWAYS KEEPS THE HOUSE
While it is true that a court will try not to disrupt the lives of small children, it is not true that a judge will automatically award either party the marital home. If the home is the only significant asset, allowing one spouse to keep it would result in an unequal division of the parties assets and is an unlikely outcome. Also, in situations where it is not financially possible for either spouse to maintain the home, the judge will likely order the home to be sold. Sadly, this is the reality in many situations where the parties, while still together, are living beyond their means. If the parties cannot afford the home while together, it is impossible for either party to afford the home on his/her own.
In many divorce cases, these misconceptions often cause parties to expend large sums of money in litigation, only to realize, days later and many dollars shorter, that reality differs greatly from urban divorce legend.
There are numerous misconceptions when it comes to divorce. Often, situations which could be resolved fairly amicably become highly contested because one of the parties is operating under the mistaken belief that the myth is actually the reality. Below are three of the most common misconceptions.
UNLESS I HAVE CUSTODY, I WILL ONLY SEE MY CHILD ON THE WEEKENDS
I hear this often from clients, especially fathers who are involved in the lives of their children and fear becoming the “weekend dad”. For some reason, parties seem to think their right to spend time with their children is “all or nothing”.
Regardless of whether there is a primary residence for children, the parties, except under extraordinary circumstances, enjoy shared parental responsibility of their children. This means that both share equally not only in decisions affecting their children, but in their children’s lives. For instance, if dad is the son’s baseball coach, dad can continue to do so and can attend all baseball games regardless of where the son spends his evenings. By the same token, mom can continue to participate in extra curricular activities, even if it is dad’s weekend with the children.
Rather than focus on the percentage of time spent with children, parties should consider their children’s schedules and the amount of quality time to be spent with children. Once parties realize that neither will be excluded from their children’s lives, it is often easier to create a schedule that works for everyone, especially the children.
I AM ENTITLED TO EVERYTHING
This happens in many cases where a spouse feels severely wronged by the actions of the other and thinks that he/she will receive the house, children, bank accounts and anything else of value while the other spouse will be awarded nothing more than the shirt on his/her back and the debts. This is not the case as Florida is a no fault divorce state. Unless there is a financial component to the wrongdoing of a party or another reason not to divide assets and liabilities equally, a judge will make an equal, or nearly equal division of assets and liabilities. While there are many reasons to deviate from this, the wrongdoing of one party, i.e., simply being a bad spouse, is not one of them.
THE WIFE ALWAYS KEEPS THE HOUSE
While it is true that a court will try not to disrupt the lives of small children, it is not true that a judge will automatically award either party the marital home. If the home is the only significant asset, allowing one spouse to keep it would result in an unequal division of the parties assets and is an unlikely outcome. Also, in situations where it is not financially possible for either spouse to maintain the home, the judge will likely order the home to be sold. Sadly, this is the reality in many situations where the parties, while still together, are living beyond their means. If the parties cannot afford the home while together, it is impossible for either party to afford the home on his/her own.
In many divorce cases, these misconceptions often cause parties to expend large sums of money in litigation, only to realize, days later and many dollars shorter, that reality differs greatly from urban divorce legend.
Thursday, April 5, 2007
JOINT AND ROTATING CUSTODY: FACTORS TO CONSIDER
Florida courts are considering joint and rotating custody in more and more divorce cases and there is even talk about a presumption that children should spend 50% of their time with each parent. There are certainly arguments in favor of this position, and I am not one to argue against it. However, there are numerous factors which should be considered to determine whether it will be feasible. These factors include:
1. Two Households: Both Alike and in Proximity: In order to rotate time with children, both parents should, ideally, live in the same neighborhood, or, at least, in reasonable proximity to one another. This will avoid long commutes not just for the parties, but for the children. This may not be economically feasible for some parties.
2. No living out of a suitcase: Judge who consider and ultimately award joint and rotating wish to avoid a situation where the children must pack a bag every few days or at the end of each week. In order for the rotating schedule to work, children need to have two sets of everything- school textbooks, clothing, toiletries and medications, etc. There will be the occasional transport of items from one household to another, but, generally speaking, the children need to have a separate set of all essentials available at each household. Again, this may not be economically feasible for both parties.
3. Schedule permitting: Not only must each parent have the ability to coordinate their schedule around their children’s school schedule, each parent must be able to accommodate the
extracurricular activities that go along with the schedule. This is not an easy task and not always possible as many work schedules do not allow for this level of flexibility.
4. Living in harmony: While the parties do not have to be completely amicable, it would be difficult to convince a Judge that they could pull off this schedule if there is a high level of discord between them. Couples who are at odds and who have litigated numerous issues during their divorce often do not make suitable candidates for joint custody, which requires communication and cooperation between the two parties.
When representing a client who is insistent upon joint custody, I often ask about the client’s schedule and why this concept is so important. In many instances, the concern is about quality time with the children and not losing touch with them. However, there are other ways to accomplish this goal that do not require a rotating time sharing arrangement. Parties are often unaware that they are both entitled to attend after school and extracurricular events regardless of whose “day” it is. This is especially important to the parent who has been coaching little league or who attends boy/girl scouts with the child. Such activities can be included in a time sharing schedule and may be far more important than the number of overnights.
I’ve seen instances where joint and rotating custody works extremely well and other instances where it is not possible. The important thing to keep in mind is to focus on the parties need to share in the lives of their children and the children’s need for stability and equal participation, which may or may not equate to equal time, with both parents.
1. Two Households: Both Alike and in Proximity: In order to rotate time with children, both parents should, ideally, live in the same neighborhood, or, at least, in reasonable proximity to one another. This will avoid long commutes not just for the parties, but for the children. This may not be economically feasible for some parties.
2. No living out of a suitcase: Judge who consider and ultimately award joint and rotating wish to avoid a situation where the children must pack a bag every few days or at the end of each week. In order for the rotating schedule to work, children need to have two sets of everything- school textbooks, clothing, toiletries and medications, etc. There will be the occasional transport of items from one household to another, but, generally speaking, the children need to have a separate set of all essentials available at each household. Again, this may not be economically feasible for both parties.
3. Schedule permitting: Not only must each parent have the ability to coordinate their schedule around their children’s school schedule, each parent must be able to accommodate the
extracurricular activities that go along with the schedule. This is not an easy task and not always possible as many work schedules do not allow for this level of flexibility.
4. Living in harmony: While the parties do not have to be completely amicable, it would be difficult to convince a Judge that they could pull off this schedule if there is a high level of discord between them. Couples who are at odds and who have litigated numerous issues during their divorce often do not make suitable candidates for joint custody, which requires communication and cooperation between the two parties.
When representing a client who is insistent upon joint custody, I often ask about the client’s schedule and why this concept is so important. In many instances, the concern is about quality time with the children and not losing touch with them. However, there are other ways to accomplish this goal that do not require a rotating time sharing arrangement. Parties are often unaware that they are both entitled to attend after school and extracurricular events regardless of whose “day” it is. This is especially important to the parent who has been coaching little league or who attends boy/girl scouts with the child. Such activities can be included in a time sharing schedule and may be far more important than the number of overnights.
I’ve seen instances where joint and rotating custody works extremely well and other instances where it is not possible. The important thing to keep in mind is to focus on the parties need to share in the lives of their children and the children’s need for stability and equal participation, which may or may not equate to equal time, with both parents.
Wednesday, April 4, 2007
All's Fair in Love and War: Or is it?
One of the oft heard phrases in divorce mediation is “I want what is fair”. It’s a paradox of sorts as it is hard to argue that one party should settle for something that is not fair while, at the same time, it is difficult to define what is, in fact, fair. The person who makes this statement has no trouble with it, as he or she is firmly convinced of what is fair. However, fair, much like beauty, is in the eye of the beholder.
In mediation, parties are often encouraged to generate solutions. This is particularly true in divorce, where issues such as time sharing with children, are better decided by the parties as opposed to a Judge who has never met their offspring. This is also true of dividing assets and liabilities as a Court’s approach to simply split everything may not work for the unique situation at hand. But what often happens is that, rather than discussing options, one or both parties become fixed on a particular position, based on the notion that it is the fair or right way to handle things. The party or parties who do this become what I refer to as “the arbiter(s) of fair.” Should the other party reject this proposal, then the conclusion is that he/she must be unfair.
Unlocking the gridlock is often a mediator’s challenge. In order to do so, one must look beyond the position taken by the parties and get to the heart of the matter. In essence, what are a parties motivations, or, more properly phrased, what are his/her interests?
Interest based negotiation is especially crucial in divorce mediation. Often, parties become stuck on a particular position, i.e, I must keep the house, I want to spend 50% of the time with the children, etc. The parties position is often based on what this particular asset or issue represents to that person. Keeping the house may represent security and insistence on joint custody may represent an underlying fear of not being involved in the children’s lives. However, there may be another solution that addresses the concern. For example, a party may be able to remain in the home for a period of time or may realize that there is greater security in reducing the expense associated with a home that has now become too large. The parties can also work out a schedule that allows for ample quality time between the children and both parents, without looking at percentages.
Divorce mediation is, quite possibly, the most stressful negotiation possible given the high level of emotion and fear. It is not a far journey from fear to insistence on what is fair. Rather than question the determination of fairness, a mediators role is to help the party uncover the interests that are at stake. By uncovering these interests, it is entirely possible to arrive at a solution that is fair to all concerned.
In mediation, parties are often encouraged to generate solutions. This is particularly true in divorce, where issues such as time sharing with children, are better decided by the parties as opposed to a Judge who has never met their offspring. This is also true of dividing assets and liabilities as a Court’s approach to simply split everything may not work for the unique situation at hand. But what often happens is that, rather than discussing options, one or both parties become fixed on a particular position, based on the notion that it is the fair or right way to handle things. The party or parties who do this become what I refer to as “the arbiter(s) of fair.” Should the other party reject this proposal, then the conclusion is that he/she must be unfair.
Unlocking the gridlock is often a mediator’s challenge. In order to do so, one must look beyond the position taken by the parties and get to the heart of the matter. In essence, what are a parties motivations, or, more properly phrased, what are his/her interests?
Interest based negotiation is especially crucial in divorce mediation. Often, parties become stuck on a particular position, i.e, I must keep the house, I want to spend 50% of the time with the children, etc. The parties position is often based on what this particular asset or issue represents to that person. Keeping the house may represent security and insistence on joint custody may represent an underlying fear of not being involved in the children’s lives. However, there may be another solution that addresses the concern. For example, a party may be able to remain in the home for a period of time or may realize that there is greater security in reducing the expense associated with a home that has now become too large. The parties can also work out a schedule that allows for ample quality time between the children and both parents, without looking at percentages.
Divorce mediation is, quite possibly, the most stressful negotiation possible given the high level of emotion and fear. It is not a far journey from fear to insistence on what is fair. Rather than question the determination of fairness, a mediators role is to help the party uncover the interests that are at stake. By uncovering these interests, it is entirely possible to arrive at a solution that is fair to all concerned.
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