Once the decision has been made to end the marriage, the most important question to be answered is “how” the parties will go about it. Increasingly, divorcing couples seek alternatives to traditional divorce litigation in order to be able to customize the outcome to the needs of their family, and, to avoid the economic and non-economic costs associated with such litigation. Responding to the demand for alternatives to litigation, DivorceChoice® is the latest development in the divorce alternative dispute resolution arena.
DivorceChoice® provides clients with the flexibility to choose from among all of their options in creating a process that suits them. The clients select, both, the Negotiating Model and the Dispute Resolution Mechanism with which they are most comfortable.
Clients are free to “stack” their choices. For example, the Negotiating Model can specify four-way meetings as requested, followed by mediation, before proceeding to the dispute resolution phase of the process.
The linkage between the Negotiating Model and the Dispute Resolution Mechanism is the distinctive characteristic of DivorceChoice®. It takes into consideration the fact that, despite the best efforts of the parties and their counsel, a global settlement may not be the result of the negotiation. Indeed, in some instances, a party may enter into a divorce process alternative to litigation with the hope that a “sweetheart deal” can be obtained, with the underlying intent being to litigate if the other party does not agree to a one-sided settlement. By identifying the Dispute
Resolution Mechanism in advance, the potential of threatening litigation as a bullying tactic is effectively removed. For DivorceChoice®, the conclusion of the negotiation phase of the process without agreement is not viewed as a “failure,” but, rather, merely a shift to the next phase of the DivorceChoice® process, namely, dispute resolution.
Among the Dispute Resolution Mechanisms, arbitration is an attractive choice as the method by which a dispute, other than parenting issues, can be resolved. Arbitration is discreet in that no public record is made like that which occurs with the filing of pretrial statements and other pleadings in litigation. Arbitration can also be informal. The Rules of Evidence may be suspended, and parties may be provided the opportunity to speak in the narrative rather than only in response to questions posed by counsel. Arbitration can be conclusive, and not subject to appeal, if “binding arbitration” is selected. Arbitration can also be an expedited process when compared to the timeline of a litigated matter.
Just as arbitration can be effectively used to resolve disputes, private judging provides the parties with the opportunity to have their case heard by a former judge, although unlike arbitration, the decision of a private judge can be appealed. Parenting coordination is also an alternative to litigation in providing a solution to parenting issues that cannot be resolved by negotiation.
This is not to suggest that there is anything wrong with the selection of litigation as the method by which a dispute is resolved. In cases involving concealment of assets, difficult valuation issues, or, domestic violence, litigation may well be the process of choice. Within DivorceChoice®, however, if litigation is chosen as the Dispute Resolution Mechanism, the choice is qualified as being “cooperative litigation.” Simply put, this means that no “gotcha” tactics, or personal attacks, will be used in the course of the litigation. The parties and their counsel will use their best efforts to present their issues to the court as efficiently as possible, including the use of stipulations wherever possible.
Because DivorceChoice® does not view a negotiation that ends in impasse as a failure, there is no disqualification of counsel if the process moves to the dispute resolution phase. The lack of the potential for disqualification, however, is not a license for lawyers representing parties in DivorceChoice® to engage in positional bargaining. At its core, DivorceChoice® remains an “interest-based” process.
All of the Negotiation Models in DivorceChoice® are designed to be “interest-based” dialogues. Interest-based negotiating has its roots in in the book, Getting to Yes, by authors Roger Fisher, William Ury and Bruce Patton. Interests are what lie behind positions. The most powerful interests are found in the most basic of human needs, including security, recognition, and control over one’s life. When a client says, “I want custody of my children,” the client is expressing a position. The interests that lie behind that position may include: “I want my children to be safe;” “I want my children to be loved;” “I want my children to be healthy;” or, “I want my children to experience consistency and continuity.” Understanding the interests of the parties is the key to unlocking creativity in a negotiation. In order to be effective in the negotiation, the interests of both parties need to be made known and understood.
The Negotiating Models in DivorceChoice® are based upon the interests of the parties. Whether participating in a four-way meeting; a meeting with opposing counsel; coaching a client in preparation for a mediation session; or, working with a facilitator, the role of the attorney in DivorceChoice® negotiations is that of a problem solver. In such an environment, settlement structures frequently emerge that are different from “probable outcome at court.” The fact that an outcome is “different” than what might happen at court, does not, in and of itself, make it better, or worse, than “probable outcome” at court. It is just different. The difference, however, in most cases, reflects the unique interests and goals of the parties.
There is no single process that will work for every family facing the termination of their marriage. Litigation, Collaborative Divorce, Mediation, and DivorceChoice® all provide distinctive options for clients faced with how to terminate their marriage. The flexibility afforded by DivorceChoice® makes it an appealing addition to the choices available, and if you select arbitration as the way in which any dispute will ultimately be resolved, DivorceChoice® is the only process that assures that you will not become involved in prolonged court litigation that is unnecessarily costly to the family, both economically, and emotionally.
The Preferred Providers of DivorceChoice® are members of the DivorceChoice® Alliance. These attorneys are knowledgeable and have received additional training to implement the DivorceChoice® process.
Mr. Skirbunt is a seasoned attorney that helps families navigate complex divorces and family transition events. James’ world class experience has uniquely qualified him to pioneer a hybrid method that combines the best practices of multiple divorce methods, for the benefit of each party.
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