Is mediation right for you? Determining if you are a candidate for
mediation
While the large majority of couples who mediate
are successful, mediation does not work for everyone. In deciding
whether to pursue mediation, you need to consider whether you are
a good candidate for mediation. Before you exclude mediation as an
option, make sure that you understand the many different ways in which
mediation can occur.
Attorneys in mediation: Some parties avoid
mediation because they believe it will require them to meet with their
spouse without the aid of an attorney. This should not, by itself,
form the basis for rejecting mediation. Mediation can include attorneys,
and many mediators are skilled in working with the attorneys in mediation
sessions.
Power imbalances: Sometimes mediation is
avoided because one party perceives a power imbalance. (He or she
believes the other spouse will have a greater ability to negotiate
an agreement.) While this is a valid concern, many mediators are skilled
in conducting the mediation in a manner that balances the power even
in difficult cases.
Spousal abuse: In cases of spousal abuse,
mediation must be approached with great caution. A victim of abuse
should not feel compelled to sit across the table from someone who
has been physically abusive to them. In fact, even though courts now
require some mediation in most divorce cases, Minnesota law prohibits
forcing mediation where one spouse has been abused by the other. On
the other hand, there are mediators who are skilled in providing mediation
even where abuse has occurred. Abuse victims should not feel discouraged
in choosing mediation as an option. However, when mediation is chosen
in these circumstances it is important to have a mediator who is experienced
with abuse issues and is able to create a safe and comfortable environment
for the mediation.
Choosing
a mediator: Once you have made the decision to mediate, you need to
choose a mediator. Just as in choosing an attorney or other professional
to assist you, it is important to choose your mediator or mediators
carefully.
Beyond Mediation
Mediation is not the only way to stay out of
court: Because mediation is the most widely recognized alternative
dispute resolution method, people often mistakenly believe it is the
only alternative to court. When mediation is unsuccessful or rejected,
these individuals mistakenly believe that they are forced to follow
the traditional, adversarial process. There are many other alternate
dispute resolution methods and tools that have had great success in
allowing couples to resolve their issues out of court.
Other ADR options to consider, even when mediation
is chosen: Even when mediation is used, there are many other options,
(such as Collaborative law, parental consultants, etc.) that are used
in conjunction with mediation.
This section will discuss the alternatives to
mediation and other tools and alternatives that can operate as an
aid to mediation. Before we look at these alternatives and tools,
it is helpful to examine the role that attorneys have in the process
of alternate dispute resolution.
Do you still need an
attorney?
A look at the need for attorneys in Alternate Dispute Resolution
Regardless of how you choose to resolve the dissolution process, it
is almost always advisable to obtain the services of an attorney.
Resolution of family conflict is governed in part by state laws. You
need the aid of someone who understands those laws. A good attorney
will help you understand the procedure to follow to bring your case
to a successful conclusion. Additionally, an attorney who is experienced
in working in areas of alternate dispute resolution can help you find
alternatives that will work best in your case. Finally, there are
many legal documents that need to be drafted and approved by the court.
A competent attorney can usually prevent future problems by preparing
documents that properly describe your agreement and avoids future
disputes.
While it is possible to find "do-it-yourself"
forms or to hire a paralegal service to type the forms for you, there
is usually more to the preparation of a workable divorce agreement
than the mere following of forms. A competent attorney will generally
save you future problems by drafting documents that will clearly reflect
the agreements you have reached.
Hiring an attorney should not mean you lose
control over your case:
One of the main concerns that people have about
hiring an attorney to help them in their divorce is that once they
"turn things over to an attorney" their case will spin out
of control and costs will escalate. While this does occur all too
often, it does not need to happen to you. The information in this
site can help keep your case in your control, with the help of an
attorney.
Remember when you hire an attorney, you retain
the right to have the ultimate say in your case. Your attorney should
do no more than act as your legal representative. The first way to
assure that this happens is to choose an attorney that will respect
your decisions and work on your behalf. For a guide on how to pick
the right attorney, click
here. In addition to choosing an attorney who truly respects your
wishes, you can choose a process that is designed to limit the role
your attorney plays in your divorce process.
"Retaining"
an attorney vs. hiring an attorney as a consultant:
While most people going through a divorce choose
to "retain" their attorney, you should be aware that many
attorneys offer the option of working with you as a legal consultant
.
Retained attorneys: A retained
attorney is one who you have agreed to act as your attorney
of record. This means that you have authorized them to act on
your behalf in certain matters. In fact, a retained attorney is obligated
to do certain things on your behalf until the attorney/client relationship
has been terminated. When you retain an attorney it is critical to
have a written retainer
agreement that spells out the terms of your attorney/client relationship
Unbundling --the use
of Attorneys as consultants: If you choose not to retain an attorney,
(and therefore choose to act on your own behalf) you may still get
legal advice from an attorney who is acting in the role of a legal
consultant. When you hire an attorney as a consultant, you pay for
the time you spend with that attorney. This time is most often the
time you meet with the attorney in their office. Using an attorney
is advantageous to people who do not wish to turn any portion of control
of their case over to another professional. This can control costs
in that the attorney will not bill you for any time other than what
you have specifically directed.
Using an attorney as a consultant can give you
more control of your case, but does have some risks. The attorney
has no obligation to act on your behalf in the future and, if you
should need immediate legal services, (such as after receiving court
papers) you may have some delay while you find an attorney to assist
you. Despite this risk, there are a number of people who choose this
method in order to keep more control over their legal fees. These
individuals sometimes consult with their attorney and choose their
other professionals, (mediators, financial neutrals, paralegals etc.)
on their own. This concept sometimes referred to as "unbundling",
because rather than hiring an attorney to arrange for a bundle of
services, you are simply paying for legal fees. To that extent, unbundling
is similar to acting as your own general contractor when building
a house. Rather than have a retained attorney arrange for certain
other services, you are hiring the "subcontractors" on your
own.
Attorneys Who Keep You Out of Court
In choosing
an attorney to help you pursue a settlement out of court, it is critical
to find an attorney who believes in alternate dispute resolution.
Many clients understandably fear that attorneys will lead them to
court, (or at least fail to prevent them from going to court) because
attorneys make more money when cases go to court. Despite this financial
incentive for attorneys to litigate, there are many family law attorneys
in our community who have earned outstanding reputations for their
ability to find good, out of court solutions for divorcing clients.
In fact, Minnesota is a home of Collaborative Family Law, a nonprofit
organization in which the attorneys commit, by contract, to keep your
case out of court. Information about Collaborative Law in Minnesota
can be found at www.collaborativelaw.org.
For information about Collaborative
Law throughout the world, go to www.Collaborativepractice.com.
The Collaborative Method
is described in a new book written by Stu Webb, the founder
of the Collaborative Method and Ron Ousky, the creator of this website
and a leader in the Collaborative Movement. The book, entitled The
Collaborative Method of Divorce. The Revolutionary Method that Results
in Less Stress, Lower Costs and Happier Kids--Without Going to Court
is available in bookstores everywhere by June
2006 and can already be ordered at Amazon.com.
Collaborative Law is a way of practicing law in
which the attorneys agree to assist the parties using cooperative
strategies rather than adversarial techniques and litigation. This
early non-adversarial participation allows the attorneys to use analysis
and reasoning to help their clients solve problems and creates a positive
context for settlement. In Collaborative law cases, the attorneys
and the clients all sign an agreement saying that, if one of the parties
choose to go to court, both parties must use different attorneys.
In the overwhelming majority of Collaborative Law cases this tremendous
disincentive essentially eliminates court as an option and forces
clients and their attorneys to find more creative and civil ways to
resolve their conflicts.
Collaborative Law
was started in 1990 by Stu Webb,
a Minneapolis attorney and one of the many profossionals who
served on the original DivorceChoice.com Advisory
Board. Because of its tremendous success in providing clients
with an option that truly serves their interests, Collaborative Family
Law has spread throughout the United States and Canada. The results
of this new method have been so astonishing that it has been written
up in many national publications and was featured on the CBS Evening
News with Dan Rather on January 23, 2001.
Often, when divorce is being handled in a civil
manner, divorcing couples wonder why they can't use the same attorney.
It is unethical for any attorney to represent both parties to any
lawsuit. Even in the most amicable divorce, the attorney has an obligation
to be loyal to their client and to work to protect their client's
interest. An attorney who agrees to be loyal to the interests of both
parties is creating a conflict of interest that jeopardizes their
ability to truly represent either client.
Despite this limitation, attorney's fees can be
reduced considerably by having one attorney draft all of the documents
on behalf of one spouse and having a second attorney review the documents
on behalf of the second spouse. Sometimes, this can reduce the time
of the second attorney to one or two hours, while still providing
that both parties have had independent legal advice. With something
as important as a divorce, it is almost always worthwhile to have
at least one hour of good legal advice before you sign the marital
termination agreement.
While it is generally not advisable, it is possible
for either party to completely waive their right to an attorney. This
often creates the mistaken impression that the parties are using the
same attorney. Therefore, if you have heard of couples who have "used
the same attorney" it is a near certainty that the attorney represented
one spouse while the other spouse chose to waive their right to an
attorney.
It is also possible for one spouse to simply use
the attorney as a legal
consultant without retaining their full services. In these instances,
the party who simply consulted with an attorney may be waiving their
attorney for purposes of signing the documents, while still getting
full advice on all matters. (For more on the use of an attorney as
a consultant click here ).
Is court the only way out?
Sometimes, no matter how hard the parties try
to reach a full resolution, they are unable to reach an agreement
on one or more issues. No matter which process you use it is always
possible that you and your spouse could reach an impasse,
in which both you and your spouse believe that further discussion
and compromise on certain issues are not possible. One of the great
misconceptions that still exists is that court is the way to obtain
a decision in your case. This is simply untrue. In almost all cases,
you and your spouse still have many options that are generally more
cost effective and reliable than going to court. Alternative dispute
resolution, while encouraging agreements, offers many other decision-making
alternatives as well. While there are many options for seeking third
party decisions, almost all of the options involve some form of seeking
advisory opinions or binding decisions
by private individuals.
Advisory opinions or recommendations:
There are many skilled neutral professionals available
who can offer advisory opinions or recommendations on almost any issue
that will help you resolve your case. Usually this process involves
having the neutral professional examine or investigate the facts relating
to a particular issue for the purpose of offering you and your spouse
an unbiased recommendation. The result is often called an advisory
opinion because it is non-binding, meaning that one
or both parties may still reject it. Non-binding advisory opinions
are sometimes referred to as Early Neutral Opinions.
Types of advisory opinions. The recommendations
made can include a wide variety of areas. These may include having
a financial
neutral recommend a tax strategy, having a neutral attorney give
an opinion on how a legal issue should be resolved, or having a child
psychologist recommend a parenting schedule that is in the best interests
of your children. In each case, a neutral party is carefully selected
based upon his or her expertise and reputation as an unbiased, competent
expert. You and your spouse can also decide how much weight to give
the opinion by deciding, in advance, whether the decision will be
admissible in any future proceedings. Often these recommendations,
even though non-binding, allow the parties to resolve issues without
the need for court intervention.
Binding decisions made
by neutral third parties:
Of course, non-binding advisory opinions do not
always lead to resolutions, since the opinions can be rejected. This
leads some parties to choose one of many forms of binding decisions.
Just as the court can choose a judge to make decisions for you, the
parties can, in most instances, choose a "judge" of their
own to make decisions. It is fair to ask why it is advantageous to
hire a private judge, when the court provides one for "free".
A private
judge usually saves time and money by allowing you to choose a
more efficient process and by allowing you to provide a decision-maker
that is trusted by both parties. (Although, as you will see below,
these private decision makers can have a variety of titles, for ease
of understanding, the people who make binding decisions
for you will be referred to as "private judges' in this section.)
Choosing your own "judge" allows you to choose a more
qualified decision maker:
While it is true the state will appoint a decision-maker
for you, the appointment is relatively random and will allow you and
your attorney very little input into who the decision-maker will be.
As a result, someone who has very little expertise in a given area
may be required to make the decision. For example, if your issue of
disagreement relates to determining the parenting schedule that best
meets the needs of your children, you could very well be assigned
a judge who has no expertise in child rearing. If one of your goals
were to reach a resolution that is in the best interests of the children,
your objectives, (and the children's needs) would be best served by
choosing an expert in child development. In fact, with the aid of
skilled professionals, you could have one of the best child development
experts in the community make a decision for you. Choosing any third
party to make an important decision is still risky. Obviously, the
best people to make decisions about your children are you and your
spouse, since you know the particular needs of your children best.
However, if you cannot agree, the next best alternative is to find
the best decision-maker available.
This example holds true, not just when it comes
to areas of child development, but in other matters as well. Tax issues
may best be resolved by a tax expert; property valuation issues may
best be resolved by experts that have knowledge about the particular
item of property, etc. In each case, your chances of a sound decision
are enhanced by pre-selecting someone you know is qualified and fair,
rather than allowing the random selection of a decision-maker.
Even in cases where there are many decisions to
make or in cases where the decisions are more in line with the types
of things that judges tend to know, (such as a legal application or
a finding of fact) you are generally better off choosing your own
expert to render the binding decision. There are skilled attorneys
and even retired judges who can be hired to make decisions. This allows
you, with the advice of your chosen advisors, to choose someone that
you can be confident is a fair and qualified decision maker. Judges,
like all professionals, have wide varieties of strengths. People who
have decisions made for them in court often come away believing that
the judge was not fair or was not qualified to make the decision that
was rendered. Whether the criticism is well founded or not depends
on a particular case. However, it stands to reason that individuals
are far less likely to respect, (or even obey) decisions made by a
randomly selected stranger. When you can choose your own judge, you
are more likely to accept even adverse decisions with the understanding
that the decision was made fairly and competently and is therefore
to be respected.
Choosing a "private judge" allows
you to choose a process that gets better information to the decision
maker:
The other significant reason that private judges
can make better decisions is that you and your spouse, (with the help
of your attorneys) can choose a process that allows the judge to have
better information. In court, the information submitted to judges
is heavily restricted by court rules and rules of evidence that may
not make any sense in your case. While these rules may have their
proper place, in family law cases, they often serve to hinder the
ability of the judge or referee
to get the information that he or she needs to make the best decision.
Choosing your own decision making process:
Even the best judges say that they are hampered
in their ability to make decisions by a cumbersome court process that
inhibits the ability to get the right information before the court.
Often, even after the parties have spent tens of thousands of dollars
and created immeasurable emotional damage, the amount of information
that the judge has to aid him or her in making the decision is surprisingly
lacking. Nowhere is this truer than in the area of determining child
custody. Usually, at the end of a custody trial, judges are left with
a limited and distorted array of facts that forces the judge to make
the most important of decisions on very little reliable information.
Ramsey County Referee Earl Beddow, a highly respected judicial officer
who has presided over many custody trials, describes this unenviable
task as like having to "performing brain surgery with a chainsaw".
This is not the fault of the particular judge, but the result of a
system that just isn't designed to handle these kinds of processes.
Absent some agreement for a more creative process, most court trials
have to follow court rules and procedures designed primarily
for other uses. In family law, many of the court rules limit the information
available to the decision-maker, increase costs, and add to the conflict.
While there are some who would defend our system
of determining these issues in court, no person could truly deny that,
if our society were to start from the beginning to design a system
of resolving family conflicts, it would not design anything even remotely
similar to the system that judges are presently forced to follow in
court trials. While efforts to improve that process are constantly
underway, practical and legal limitations make it certain that courts
are many years away from designing a decision making system that is
comparable to the kind of private system you and your spouse could
create for yourself today.
Private dispute resolution allows individuals, with the help of attorneys
or other advisors, to choose a reliable and fair method tailored to
the particular dispute at hand. In virtually every instance, the "tailor
made" resolution system will be faster, less expensive, and more
likely to lead to a reliable decision than the methods compelled by
our current court system. In virtually every respect, parties willing
to design their own system almost always come out ahead of their courtroom
counterparts
The other strong advantage of a private decision
making system is that it can reduce conflict and retain privacy. Courtroom
"battles" tend to encourage litigants to make inflammatory
allegations against the other party. These allegations invariably
lead to inflammatory counter-allegations all of which are made into
public records at the courthouse. People are often shocked to find
out how their most private and sensitive matters are made available
for all to see. Private dispute resolution can allow parties to reduce
or eliminate inflammatory allegations and keep all aspects of the
process private.
Breakdown of how this can be done:
Up to this point, both non-binding and binding
opinions have been discussed generically, as if these two areas all
fit neatly under those two labels. In reality, these two concepts
take on many different forms in our present community. This area of
conflict resolution is growing so rapidly that new methods and labels
evolve almost every year. This next section will give you an overview
of the various methods of obtaining binding and non-binding decisions,
so that you, with the assistance of your attorney and/or mediator,
can find the option right for you.
Arbitration -- the
traditional form of private decision making:
The entire concept of hiring a private decision-maker
to make binding or non-binding decisions is often referred to as coming
under the broad label of "arbitration." The term "arbitration"
is often avoided in discussions of divorce alternatives, both because
it tends to be overbroad and because it conjures up images of very
formal almost "court-like" proceedings. It is true that,
in many areas of the law arbitrations are conducted in a manner that
is nearly as formal as some court proceedings. While the method of
arbitration can be varied to fit the needs of the parties, the one
common feature of arbitration, (almost by definition), is that the
decision cannot be appealed
by either party. (While it is true that the parties can stipulate
to make it possible for the arbitrator's decision to be appealed,
by doing so, the parties have really defined a slightly different
type of neutral called a consensual
special magistrate.
In any event, the decision to eliminate the possibility
of appeal is an important one.
The right to appeal means you have the right to challenge the decision
by seeking to have the decision reviewed. In court proceedings, the
appeal is usually to a panel of judges called a Court of Appeals .
Eliminating the right to appeal can have the advantage of guaranteeing
closure on an issue, but also carries with it the risk that a party
can be bound by almost any decision, regardless of how unusual the
decision may be thought to be. For this reason, there is some question
as to whether decisions that affect minor children, (such as custody
decisions) can truly be arbitrated in this manner. Where there are
minor children involved, the State of Minnesota almost always reserves
the right to make sure that decisions made, through any process, are
not harmful to the children.
Consensual Special
Magistrates -- arbitrators who can be appealed:
If you like the pure concept of an arbitrator
but want to be able to retain the right to an appeal, you need to
choose a consensual special magistrate. However, in choosing this
process, bear in mind that, because an appeal is possible, certain
formalities need to be in place to make sure that there is an accurate
record of what went on in the process. Because of this, use of a consensual
special magistrate can take on many of the formalities of court.
Med/Arb -- getting the best
of both mediation and arbitration:
Some people find it best to combine the benefits
of mediation and arbitration. They want to use a mediator to help
them reach a decision on their own if they can. At the same time,
if they cannot reach a decision on their own, they want an arbitrator
to make decisions. It is possible to have the "best of both worlds"
by using a process called "med/arb" (short for mediation/arbitration).
This process allows the neutral to work with individuals to reach
an agreement. If an agreement cannot be reached, the parties can switch
to arbitration, either by using the same person to arbitrate the case
or by using a separate individual. The main advantage this process
has over standard mediation is that parties know problems will be
resolved even if they cannot reach an agreement on their own. This
new process is done both with and without attorneys present. It can
be binding or non-binding according to the wishes of the parties.
Two forms of med/arb that are used to resolve
parenting disputes are and .
Special med/arb methods
when children are involved -- using neutrals that can provide ongoing
assistance:
When children are involved in a dissolution, many
special concerns arise. One significant concern is the need for ongoing
decisions. While a one-time agreement or decision regarding a property
issue generally means the end of the dispute, issues with minor children
are ongoing. Even when parties are successful in reaching a full agreement
about child issues at the beginning of the case, there is an ongoing
need for them to reach agreements throughout the time that children
are minors. In fact, with young children, it is likely that the parents
will be required to make hundreds of decisions together in the years
ahead. (This is just one of the reasons that a custody trial which
leaves one party the "winner" and the other party frustrated
does not truly resolve very much, from the standpoint of the needs
of the children.)
In any event, because children have ongoing needs
it is often helpful, and sometimes necessary, to have professionals
who can remain working with the parties over a period of time, sometimes
for years after the divorce. Certainly, mediation is a process that
can be used over time and many parties choose to come back to mediation
as new needs arise. However, for parties that want more than just
mediation, two new options, parenting
time expeditors and parental
consultants have also become available.
Parenting Time Expeditors
- formerly called Visitation expeditors:
A parenting time expeditor is someone chosen to
interpret, clarify and address issues that are not covered by your
agreement or the court order, or to enforce the parenting plan agreement
and order. A parenting plan expeditor can be used to resolve a single
dispute or can stay working with the parents over a period of time.
You and your spouse can choose to stipulate to a parenting plan expeditor
or, if you are not in agreement, a court could appoint an expeditor
on its own. Even when the expeditor is involved by agreement of the
parties, it is necessary to have the agreement made into a court order
so that the expeditor has the authority to perform this function.
Once the parties agree on a parenting plan expeditor,
the agreement is made into a court order. When a dispute arises, the
parenting plan expeditor is first required to work with the parties
to reach an agreement. If an agreement cannot be reached, the parenting
plan expeditor makes a decision. This decision can be reported to
the court and, if a party fails to abide by the decision of the expeditor,
the court may enforce the expeditor's decision.
The role of parenting plan expeditors is specifically
defined in a new law, (Section 518.175 of the Minnesota statutes).
While the provisions of the law can be modified, the statute controls
the role of the expeditor unless the agreement or order specifically
modifies the role. Because of the specific legal requirements related
to the appointment of an expeditor, it is generally necessary to have
an attorney to fully explain the role that the expeditor may have
and to prepare the documents necessary to allow the expeditor to have
the necessary authority.
Most parenting plan expeditors are likely to be
mental health professionals, but they are not required to be. All
that is required is that they have the necessary training and education
required by the parenting plan expeditor law mentioned above. While
many people may qualify under the statute, the most crucial element
to keep in mind in choosing an expeditor is to make sure that the
individual has an understanding of child and parenting issues and
experience in the dynamics of working with divorced couples.
Parental consultants:
Another rapidly growing alternative is the use
of parental consultants. Parental consultants are typically mental
health professionals that can help parents through consultation, mediation
and arbitration of any parenting issues that arise. The role of parental
consultant is similar to that of a parenting plan expeditor in that
the parental consultant can mediate and arbitrate parental decisions.
However the role of a parental consultant is not specifically described
in Minnesota statutes. The role has evolved through adaptation of
med/arb principals by various mental health professionals in our area.
Therefore, parental consultants have varied somewhat in how they define
the role. Some parental consultants have broadened the role to include
virtually all parental issues, including support and related issues
where parental parenting time expeditors are normally confined to
the specific parental access issues defined in the law.
Early Neutral Evaluators
Professionals who can
provide valuable assessments:
There are many private individuals who can assist
you in resolving disputes by providing evaluations and opinions on
various issues. While these evaluators generally operate under a variety
of names, Early Neutral Adviser is the general description of this
role that is provided by Minnesota Court Rules 114. Early Neutral
Advisers can be used to provide assessments of everything from the
value of a business to custody of children to the tax advantages of
a particular spousal maintenance arrangement. The common link among
the various roles is that the neutral is hired to provide an unbiased
assessment for the purpose of helping the parties reach a resolution
of the issues. While the advice given by these neutrals is, by definition,
non-binding, the evaluations are often admissible in court, giving
both parties an incentive to take the evaluation seriously.
Child custody, visitation
or parenting plan evaluations:
One very common type of neutral evaluation is
an evaluation of issues related to custody, visitation and/or parenting
plans by a mental health professional. In these cases the evaluator
conducts a full evaluation of all issues relating to the well being
of the child or children. The investigation usually includes interviews
of the parents, observations or interviews of the children and the
gathering of information from collaterals. On some occasions the investigation
may also include psychological testing of the parents and/or the children.
At the conclusion of the evaluation a report is
issued that summarizes the conclusions reached by the evaluators.
While these evaluations are not binding on the parties, they often
provide both parties with a basis for settlement of the case. Child
evaluations can either be done through a public agency, (such as the
department of Court Services in the county in which you reside, or
by a private custody evaluator.
Financial Neutrals:
Financial Neutrals are advisors with a financial
background, usually accountants, who analyze and provide neutral opinions
regarding divorce issues. These issues can include calculation of
tax implications of various support, maintenance and property settlements;
advantageous ways to share tax credits and exemptions and evaluations
of businesses and other assets.
The use of financial neutrals to assist in these
matters can save both clients a great deal of money. Under the adversarial
system, the attorneys often either draw their own financial conclusions
or have each client hire their own experts. Then, after each separate
expert has reached their conclusions, the parties and their attorneys
would engage in a dispute over which expert or attorney is right.
These disputes are often as difficult to resolve as the underlying
issue itself. Attorneys are not necessarily skilled in accounting.
Therefore you should avoid having to pay an attorney to perform services
that could be performed more effectively by financial experts. In
addition, a financial analysis performed by the attorney, unlike that
of a financial neutral, is not necessarily going to be persuasive
to the other party, or the judge, if the attorney is not skilled in
financial methods.
Getting the Professionals to Work As a Team
With so many different kinds of professionals
involved in the alternate dispute resolution process, there is an
increasing need for the professionals to work together as a team.
This is also contrary to the adversary process in which parents hire
attorneys to confront the psychologists, accountants and evaluators
who have rendered opinions adverse to their positions. The new alternate
approach to family conflict resolution relies on cooperation among
the experts and often requires you to find professionals that can
work together. By working together, a team of professionals can sometimes
best help you find the solutions you need.
Many divorce cases give rise to issues of money,
mental health, child development, and legal interpretation. It is
unrealistic to think that any one or two individuals will have expertise
in all areas. In fact, one of the current problems that divorcing
people, forced to trust a limited number of experts, end up relying
on the experts for the wrong things. Far to often, individuals come
to their attorney looking for the kind of personal advice or therapy
that could be best handled by a mental health expert. They may also
be tempted to ask their therapist to help them understand a child
support problem that requires legal expertise. In addition, clients
too often hire attorneys to make financial calculations best handled
by an accountant, and end up asking their accountant how much they
should be paying in spousal maintenance.
The ideal scenario in these instances is having
the right experts addressing the issues that best suit their expertise
and to have the various experts coordinate their efforts. This is
often not easy since many professionals in these areas do not have
a history of working with these other professionals and may not be
skilled in working together. This is like having surgery performed
by a surgical team that has never worked together and may not even
trust each other. Errors in communication, or lack of communication
can, in either case, be costly.
This has caused some individuals, and some professionals,
to look into a team approach to handling marital conflict. Since great
reliance is placed on the professionals you use at this important
time of your life, it makes sense to have a team of experts that can
work together. This has led to the formation of multi-disciplinary
teams who work together to meet the needs of divorcing couples
or individuals.
Family Matters, Ltd.
is a multi-disciplinary group in Minnesota that offers individuals
a chance to choose attorneys, mediators, therapists and accountants
who can work together as a team to help them. For more information
about Family Matters, visit their website at: www.family-matters.com.
Another, more formal team model was developed
in California under the name Collaborative Divorce. This model has
been brought to Minnesota under the name Collaborative Team Divorce,
and offers clients a model in which clients hire divorce coaches,
child specialists and financial experts who collaborate with attorneys
to resolve all issues in a case. For more on Collaborative Team
Divorce click here.
Divorce Process Coaches
-- Professionals that can help you pull it all together:
Another emerging alternative to traditional adversarial
divorce methods involves using the services of a personal Divorce
Coach. Often, people facing a divorce are overcome with feelings of
grief, confusion, and overwhelm. They need someone to help them better
understand their options and to design a plan for meeting their goals.
Relatively new to Minnesota, a Divorce Coach is like a personal guide
who supports and advocates for you throughout the divorce process.
They have your mental, physical, spiritual and financial wellbeing
in mind as they help you sort through options. These individuals are
generally committed to a holistic approach to resolving conflict,
and provide clients with direction, process education, and assistance
in the resolution of both the human and material issues associated
with the divorce process.
Divorce Coaches can help you work with your
attorney:
While a Divorce Coach is generally knowledgeable about choices to
make in going through divorce, it is not their role to provide legal
advice. That should be left to the attorney that you have chosen to
represent you in the divorce. However, working with a coach may result
in reduced legal fees, a much more satisfying process and better results.
Coaches help you to prepare thoroughly, get more clear about your
goals, develop an effective communication plan, work effectively with
your lawyer, and identify appropriate professionals including attorneys,
therapists, financial and child development experts.
Coaching is different than therapy:
While Divorce Coaches can help you with personal
issues, they do not provide therapy and will not make diagnoses of
your mental health. Those issues should be left to a mental health
professional. However, a Divorce Coach can help you in the process
of identifying objectives and in finding the right help. They are
advocates for your success in moving on with your life during and
after the divorce process.
Advantages of a Divorce Coach
The advantages of utilizing the services of a
Divorce Coach are many. While other professionals tend to focus on
one "layer" of the divorce process, a Divorce Coach can
help you integrate the emotional, legal, financial, spiritual and
social changes that divorce represents. Their emotional support often
allows clients a new perspective in moving forward with their life
as a single person. You do not have to feel alone at a difficult time.
Using a divorce coach is cost effective. They can educate and assist
you at a substantially lower rate than an attorney, and help legal
representation and other professionals that will work with you to
control costs. As you work through this difficult transition in your
life, you may develop new competencies and positive attitudes to carry
you into the future.
Individual Divorce Coaches vs. Divorce Coaching
in teams:
The type of Divorce Coaches described in this
section differ slightly from the coaches that are used as part of
a team approach. For example, collaborative
team divorce, uses coaches to perform a specific task within the
context of that team model. While the role of those coaches may be
similar to that of a Divorce Coach that is hired separately, the role
of the coach in the team concept is defined by the model that the
collaborative team is using.
Are there ways to find alternate methods at the courthouse?
Even when all else fails, and you are somehow
forced to go to court, there are still options that allow you to proceed
in an alternate way.
Following are just three examples of Hennepin
County judges and referees who have been willing to bring methods
of alternate dispute resolution into the courtroom.
Several years ago, Hennepin County District Court
judge Mary L. Davidson,
initiated the Divorce with Dignity Program , a case
management system in which the judge resolves disputes through negotiation,
phone conference and the use of neutrals. This method gave attorneys
and their clients the alternative of going to court in a more collaborative
manner. Recently retired, Judge Davidson is taking this Divorce
with Dignity Program to the private sector, along with other
ADR services she has made available.
Last year, Hennepin County Referee Susan Cochrane
started an early intervention program in which, in all
cases assigned to her calendar, the parties must come to her courtroom
early in the process to hear about the advantages of mediation. A
very large number of these divorcing couples, after meeting with Referee
Cochrane and a mediator, are deciding to resolve their differences
out of court. Getting the right information to these couples early
in the process has dramatically reduced Referee Cochrane's motion
calendar.
The third
example of an alternate method recently used in Hennepin County was
written up on April 2000 article in Bench and Bar called "Try
a Different Custody Case". In the article, Hennepin County District
Court Judge Stephen C. Aldrich, tells how he allowed the two psychologists
who had conducted custody evaluations in the case, serve on a panel
with him to help him determine what was in the best interests of the
children.
While these three examples happen to have occurred in Hennepin County,
there are many other examples around the state of judges who are willing
to try new creative ways to handle family law matters. While the best
alternatives are almost always found outside the courtroom, it is
important to be aware of the possibility of seeking a creative solution
even if you go to court. If you are unable to avoid going to court,
it is worthwhile to ask your attorney whether the case can be assigned
to a judge or referee who is willing to find an alternate method of
resolving your dispute.
