How Do I Want To Resolve It?
The main goal is to obtain a durable separation agreement, which will incorporate the settlement of all your issues. Settling issues without the Courts saves time and money while minimizing emotional and financial stress. Staying out of the Court system means documentation exchanged and information revealed is kept confidential, and is not available for public scrutiny, as Court documents are. There are various types of negotiation available to achieve this as follows.
In this out of court settlement process, each spouse has their own collaboratively trained lawyer. There is a written commitment not to go to Court, but rather to negotiate in good faith with the end goal being:
- To minimize the destructiveness separation/divorce can have on the family
- Maximize the opportunity for a creative, durable and binding agreement
Negotiations are done through a series of team meetings. The team may consist of the two spouses and their two lawyers. However, other professionals including financial and family professionals, may be included from the outset, or added during the negotiations. By choosing this process, you are choosing professionals who are specifically trained, and motivated, to reach a settlement because they know this style of negotiation helps to reduce the emotional, financial and psychological toxicity of a divorce or separation. It also allows for considerable creativity in the least adversarial, most beneficial and respectful way, allowing you to move on with living your life. In the event one or both spouses ultimately wish to go to Court, however, both spouses must get new lawyers.
For more information on Collaborative Practice visit the International Academy of Collaborative Professionals at www.collaborativepractice.com
Traditional Settlement Negotiation
Traditional settlement negotiation involves the lawyers of each spouse attempting to negotiate a settlement out of court. This process does not require either lawyer to have specific collaborative or mediation training.
If the negotiation is successful – the settlement – incorporated into a separation agreement – deals with issues that are relevant to the particular couple. Once the agreement is finalized and signed, the only matter left for a Judge to order is the actual legal termination of the marriage.
If the negotiation is not successful, then the issues not settled can either be sent to mediation and/or arbitration, or the couple will deal with them in Court.
Mediation is the dispute resolution process in which one professional is hired by the couple to assist them in reaching either an entire agreement, or deal with specific issues in an agreement. The mediator’s job is not to give legal advice, but to be a conduit for settlement.
In mediation, each spouse must have his or her own lawyer to provide independent legal advice with respect to the legal issues. A mediator may:
- Draft the agreement, leaving it to the lawyers of each spouse to finalize the specific wording.
- Alternatively, once the agreement has been mediated and the terms agreed to, one of the lawyers may proceed to draft it, thus still leaving the “final touches” to be negotiated directly between the lawyers.
In the event an agreement cannot be reached with mediation, the outstanding issue(s) can either be dealt with through arbitration, or through the Court system.
If a separation agreement cannot be reached, via negotiation (either collaborative, traditional settlement negotiation or mediation), your options are;
Arbitration is an out of Court process in which a senior lawyer acts as “Judge”, and is retained to hear evidence and make binding decision(s). Each spouse has his or her own lawyer. The process does not occur in a courtroom, however, the Arbitrator’s decision can be appealed to a Court. In many situations, the couple will choose the person who acted as mediator to proceed to be the Arbitrator, so as to have the person who is familiar with the issue(s) continue on, rather than starting with someone new. However, someone other than the mediator can also be chosen to arbitrate. These are advantages and disadvantages to each scenario.
Litigation involves the spouses proceeding to Court to have a Judge make a decision in their case. This is typically the route of last choice, although it can sometimes be necessary