Scott David Stewart 2013-01-16 04:09:56
Resolving Your Case: Divorce Negotiation, Mediation, and Litigation (Part 1) Every divorce attorney should work diligently with each client to resolve issues of custody, property, and family support in an effort to avoid the necessity of trial. First, E.R. 3.2 requires that we expedite litigation consistent with the interests of our client. Second, resolving disputes without attending trial usually represents a cost-savings for the client. Third, trials take decision-making away from the parties. Negotiating Divorce Resolving all issues without trial may not be realistic in every situation, but it’s certainly possible in many cases. Even when trial is set, impasses can be bridged. Emotionally Faceted Divorce Negotiations Divorce negotiations are most productive when approached as a business arrangement. But are the spouses capable of that level of objectivity? Not all clients can muster the self-control and perseverance necessary to discuss family business, a key factor the attorney needs to discern early on. The emotional pressures of working through child custody, parenting time, the division of property and all other divorce issues can be overwhelming for people. -On Divorce Counseling. As a family law practitioner, I’ve observed how beneficial professional divorce counseling can be for clients. The process of dissolution is emotionally draining for most. For some it’s traumatic. Clients should take precautions to minimize the pain associated with ending a marriage. Counseling can help clients manage their situation so they can stay on task and make reasoned decisions affecting their lives and their children’s futures. -On Educating Clients. Your client will benefit from a divorce education on all pertinent issues. Do everything you can to provide access to materials appropriate for the lay person. They don’t need a law degree, they do need confidence. The more comfortable your client is with the laws relating to each issue, the more reasonable he or she is likely to be when working toward an agreement. -On Listing Objectives. Listen very carefully to what your client is communicating. Assign the client the task of carefully preparing a written, prioritized list of objectives – a list of what’s important and where compromises and concessions could be made. This will serve as a script to guide your emphasis during negotiations and is a record of what the client wanted most. Objectives sometimes change, naturally, but you don’t want your client reversing course too often. -On Client Participation. Not all clients should be asked to face off against their spouse to negotiate a separation agreement at a settlement conference. This is particularly true when there has been domestic violence in the marriage, or when one spouse is clearly a dominant force over the other. In those situations, it may be best to have the client be present, but not participate; or have the client remain in a separate room, away from the other spouse. -On Professional Referrals. Divorce attorneys are not hired to be their client’s therapists or certified financial planner. Trying to be everything for the client will only rack up legal fees and won’t advance the case. Direct the client to appropriate professionals for divorce support groups, behavioral treatment facilities, career counseling, financial planning, and so on. -On Emotional Attachments. One party usually has a greater emotional attachment to certain assets, such as the marital home, than the other. Assuaging that emotional attachment may not be prudent and could even jeopardize the client’s financial stability. Houses, as an asset, have a low return on investment and they represent a major cash expense. Conversely, not having any emotional attachment to an asset, such as a retirement plan, can be equally detrimental. Watch out for your client’s interests, especially when they don’t care about the consequences. -On Multidisciplinary Knowledge. Of course you need to know the facts, the client’s objectives, and the applicable domestic relations laws before negotiations proceed – your reputation and credibility depend upon that. But divorce practice requires a multi-disciplinary legal knowledge of real property, tax, business, bankruptcy, landlord-tenant, estate planning, and secured transactions as well. -On Opposing Counsel. Learn what you can about opposing counsel’s experience, legal knowledge, and negotiating style. Be prepared for the strengths and weaknesses of the other party’s position. Be an innovator, ready to solve problems and create solutions that could satisfy everyone’s criteria. -On Likelihood of Success. Learn more about the assigned judge to better anticipate how an issue is likely to be decided at trial. Use that knowledge to assess the merits of opposing counsel’s position and, ideally, bolster your client’s. -On Being Thorough. Don’t leave any details hanging unresolved. Failing to address who gets the tax refund, who pays the tax owed, who claims the children as dependents, how family pictures and heirlooms will be divided, all could come back to haunt your client later (which means it will come back to haunt you, too). Address the main items of consensus, then deal with all peripheral details. By paying close attention to tone, demeanor, and gestures during negotiations, you’ll get both verbal and nonverbal cues from both parties and from opposing counsel. When negotiations cannot overcome the bigger issues, look to divorce mediation. Mediating Divorce There are two paths for mediation in divorce – using a private mediator and using the court’s mediation program. -On Court Mediation Program. Mediation through conciliation services is only available to couples with children. A party files a motion for mediation requesting a court-ordered conference with a mediator to discuss child custody and access disputes. The court-appointed mediator facilitates agreements that benefit both parents, in the best interests of the children. Agreements are documented by the mediator and forwarded to the judge who may sign it as an order (absent objection). When mediation fails, the court decides all outstanding issues at trial and dictates custody terms to the parents. -On Private Mediation. The parties may also retain the services of a private mediator. One huge benefit of private mediation is versatility – any lawful issue can be presented for mediation no matter how contentious. That really sets private mediation apart from the court’s mediation program which restricts the mediator to assisting with parenting issues. For the majority of clients, negotiations are ongoing even while specific matters are mediated through the court’s program or through private mediation. When negotiations are no longer productive and the last consensus has been reached. When mediation ends without agreement or with only partial agreement. That’s when litigation is called upon to advance final resolution of the couple’s remaining disputes. Through trial litigation – the topic of my next article in this two-part series – the court will decide all outstanding issues and dictate custody terms to the parents.
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