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There are several methods of dispute resolution. Determining which you use is an individual choice. In a family law dispute where children are involved, a husband and wife may decide that they are best served by entering into mediation. This method gives the clients the most control over the process while minimizing conflict and maximizing cooperation key to a future co-parenting relationship.
In the event that one or both parties to a conflict feel that they need protection from the other or less contact and more structured guidance, the collaborative process or even litigation may be considered.
If there is little conflict between the parties, they may be able to reach an agreement on their own. Once decisions have been made, the parties can take the agreement to an attorney for review. The attorney will review the agreement and advise the clients of any additional issues they may have missed. Once any outstanding issues have been addressed and details of the agreement resolved, the attorney will assist the clients in memorializing the agreement, taking any steps necessary to make the agreement legally binding.
If the parties have unresolved issues or are not able to negotiate between themselves, a mediator may serve as a neutral third party. Mediation is not reserved for people who have little conflict and are getting along. Parties may enter mediation in a state of conflict. It is up to the mediator to calm the waters and facilitate communication between the parties once they are on equal footing.
Usually a mediator will meet with both parties at the same time. This promotes the feeling of mediator impartiality and assures that both parties are receiving the same information. In some circumstances, a mediator will meet with each party separately in a method called caucusing. This method is particularly helpful if one spouse feels that it would be impossible for them to be in the same room with the other spouse, yet still wants to try mediation as opposed to litigation. This method is more time consuming and thus, more costly, however it may work well in some situations.
A mediator gives general legal information to the parties and educates the parties so that each person possesses the same general knowledge. Many mediators choose not to work with parties where substance abuse or violence is an issue. Chandra has a strong background working with people in twelve-step programs and recovery and will carefully assess each individual situation to determine if mediation is possible. She will also consider caucusing as an option.
In the collaborative process, both parties negotiate while represented by attorneys. Each client and their attorney meet together along with any additional professionals are deemed necessary to the process. Often a child specialist, a financial specialist, divorce coach or other professionals may be included. Once an agreement is reached, both attorneys will work together to draft the agreement. In this process both parties agree to full disclosure, not to threaten litigation, and to hire new attorneys in the event their dispute goes to court.
If two parties decide to litigate, the dispute is essentially handed over to the two attorneys. They will attempt to negotiate an agreement based on each client’s individual interests. In the event that the lawyers are unable to reach an agreement, the matter will be decided before a judge in court. In this process, a client may have little input in the negotiation and will only be asked to approve or disprove of an offer from the other side. The litigation process progresses on the court’s calendar and not the client’s. Most litigation cases usually settle before going to trial but can be expensive and time consuming. This process may be especially helpful in the case of domestic violence or where one spouse has irreparably unequal bargaining power in the relationship.
Divorce and Children
If you are considering divorce and you have children you are undoubtedly concerned about the impact the dissolution will have on them, and rightly so. Any dissolution is a life-changing transition for a child. Both parents should take all possible steps to expose their children to as little conflict as possible. Mediation can be an excellent tool to work out the best parenting plan and a forum in which to learn communication skills that will help you and your spouse in your role as co-parents.
Whatever method you choose, keep in mind that consistency, love, emotional support, and a strong parent-child relationship will help your children through your process.