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A slide show comparing various divorce options with pro's and con's of each
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I’m Getting Divorced So, what’s next?
©2010 by Just Mediation, LLC, for more information: www.JustMediationLLC.com 803-414-0185
A presentation by
Just Mediation, LLC“Helping People Tackle Problems Instead of Each Other”
Divorce Options
What are my options?And how do I choose?
©Just Mediation, LLC, for more information: www.JustMediationLLC.com 803-414-0185
Key Considerations
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
© Just Mediation, LLC, 2010. For more information: www.JustMediationLLC.com 803-414-0185
Key Considerations
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?
© Just Mediation, LLC, 2010. For more information: www.JustMediationLLC.com 803-414-0185
The Options:A Quick overview (with more detail later)
LITIGATED DIVORCE
COLLABORATIVE DIVORCE
MEDIATOR ASSISTED DIVORCE
THE ORIGINAL COST-CUTTER (Just one lawyer)
PURELY DO-IT-YOURSELF, WITHOUT ASSISTANCE
© Just Mediation, LLC, 2010. For more information: www.JustMediationLLC.com 803-414-0185
Goals
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
© Just Mediation, LLC, 2010. For more information: www.JustMediationLLC.com 803-414-0185
Is Divorce Mediation Right For Me?
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?”
© Just Mediation, LLC, 2010. For more information: www.JustMediationLLC.com 803-414-0185
Ask not whether you will mediate …Ask when and how you want to mediate
© Just Mediation, LLC, 2010. For more information: www.JustMediationLLC.com 803-414-0185
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
One Size Does Not Fit All!
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: www.JustMediationLLC.com 803-414-0185
One Size Does Not Fit All!
0 0.5 1 1.5 2 2.5 3 3.5 4 4.5
Need for assistance from judicial process depends
largely on balance of power
©Just Mediation, LLC, for more information: www.JustMediationLLC.com 803-414-0185
Bullying, as manifested by
• withholding of information
• threats
• demands out of proportion to need
Pow
er B
ala
nce
d / U
mbala
nce
d
One Size Does Not Fit All!
0 0.5 1 1.5 2 2.5 3 3.5 4 4.5
Need for advice from attorney depends on degree of awareness of personal values
and law
©Just Mediation, LLC, for more information: www.JustMediationLLC.com 803-414-0185
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?
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
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
The Power/Information GridWhere do I fall?
© Just Mediation, LLC, 2010. For more information: www.JustMediationLLC.com 803-414-0185
Power balanced
Power unbalanced
Aware of options Unaware of options
A Suggested Analysis
©Just Mediation, LLC, for more information: www.JustMediationLLC.com 803-414-0185
•LITIGATED DIVORCE WITH SETTLEMENT
•Need power of judicial process to balance scales of justice
•LITIGATED DIVORCE WITH OR WITHOUT SETTLEMENT
•Need attorneys and judicial process
•MEDIATED DIVORCE•Mediator can empower self aware, equal parties to forge their own agreement
•COLLABORATIVE DIVORCE
•Parties need guidance from attorneys but do not need judicial process
Even power balance but
parties unaware of
rights High awareness as well as good
power balance
High awareness
but power is unbalancedPower unbalanced
and also parties lack information
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
Balancing of PowerIf 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.
© Just Mediation, LLC, 2010. For more information: www.JustMediationLLC.com 803-414-0185
Divorce Mediation Utilizing Attorney and Legal Process
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
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.
© Just Mediation, LLC, 2010. For more information: www.JustMediationLLC.com 803-414-0185
Collaborative Divorce
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
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. .
.
© Just Mediation, LLC, 2010. For more information: www.JustMediationLLC.com 803-414-0185
Mediator Facilitated Divorce using unbundled legal services and other professional services
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
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.
© Just Mediation, LLC, 2010. For more information: www.JustMediationLLC.com 803-414-0185
Litigated Divorce(with trial)
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© Just Mediation, LLC, 2010. For more information: www.JustMediationLLC.com 803-414-0185
Litigated Divorce(without trial)
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© Just Mediation, LLC, 2010. For more information: www.JustMediationLLC.com 803-414-0185
Collaborative Divorce
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© Just Mediation, LLC, 2010. For more information: www.JustMediationLLC.com 803-414-0185
Mediator With Unbundled Services
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© Just Mediation, LLC, 2010. For more information: www.JustMediationLLC.com 803-414-0185
Just One Lawyer
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© Just Mediation, LLC, 2010. For more information: www.JustMediationLLC.com 803-414-0185
DIYD: Do It Yourself Divorce
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)
© Just Mediation, LLC, 2010. For more information: www.JustMediationLLC.com 803-414-0185
©Just Mediation, LLC, for more information: www.JustMediationLLC.com 803-414-0185
How does each meet key goals?
Fairness Custom Fit Comprehensive Practical Cost Effective
FAIRNESS
©Just Mediation, LLC, for more information: www.JustMediationLLC.com 803-414-0185
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
CUSTOM FIT
© 2010 by Just Mediation, LLC, for more information: www.JustMediationLLC.com 803-414-0185
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
COMPREHENSIVENESS
© 2010 by Just Mediation, LLC, for more information: www.JustMediationLLC.com 803-414-0185
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.
PRACTICAL
© 2010 by Just Mediation, LLC, for more information: www.JustMediationLLC.com 803-414-0185
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
COST EFFECTIVENESS
© 2010 by Just Mediation, LLC, for more information: www.JustMediationLLC.com 803-414-0185
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.
So Again, the Options:Which seems right for you?
1. LITIGATED DIVORCE 1. FULLY LITIGATED, ADVERSARIAL DIVORCE WITH TEMPORARY AND
FINAL COURT HEARINGS, OR2. 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© Just Mediation, LLC, 2010. For more information: www.JustMediationLLC.com 803-414-0185
Collaborative or Mediated Divorce:How Do I Talk To My Spouse About It?
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: www.JustMediationLLC.com 803-414-0185
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
For more information about mediation or conflict transformation in general, please see www .xanskinner.com
Thank you for your time!
©Just Mediation, LLC, for more information: www.JustMediationLLC.com 803-414-0185
A presentation by
Just Mediation, LLC“Helping People Tackle Problems Instead of Each Other”
WHAT ARE MY DIVORCE OPTIONS?
IN CONCLUSION: