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Manav Raj, Dworken &
Bernstein Co., L.P.A.
Manu Raj practices domestic relations,
family and juvenile law. He is a founding
member and former president of the Center
for Principled Family Advocacy. Mr. Raj is
also an active presenter at numerous
seminars on topics related to domestic
relations and juvenile law in Ohio. He can
be reached at 440-352-3391 and
mraj@dworken-bernstein.com
The Center for Principled Family
Advocacy,
www.famad.com
Most people facing the end of their marriage
assume they are about to engage in a war. We
all know an aunt, uncle, friend or parent
who has been through an ugly divorce which
took years and years, cost thousands of
dollars and financially destroyed the entire
family.
What these people don’t talk about is the
emotional trauma, the non-economic cost, of
that courtroom battle. They don’t mention
the irreparable damage that they caused
their children, families, friends and, most
of all, themselves.
It is commonly quoted that 50 percent of
marriages end in divorce. If this is a
reality of our society today, shouldn’t
there be an alternative to how we end our
marriages? We teach our children life
lessons through our actions. What lessons
are we teaching when we go to “war” with the
mother or father of that child?
Empowering alternatives to
litigation in family disputes
There are alternative to the ugly,
contentious and divisive litigated divorce.
These are generally referred to as Alternate
Dispute Resolution (ADR) methods.
The different methodologies of ADR as they
apply to Family Law include
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1. |
Mediation |
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2. |
Collaboration |
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3. |
Principled
Negotiation |
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4. |
Facilitated
Negotiation |
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5. |
Arbitration |
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While each of these
processes is distinct, they have important
similarities. All are designed to avoid the
high emotional and financial costs of
litigated divorce. All are time-tested and
court-approved methods for ending marriage
and settling parenting issues.
All, to varying degrees, gives back to
clients what they lose in litigation:
control over their lives and futures.
More control over schedule, process, cost
and the future The closer
you come to litigation, the more control a
couple gives a third party to make important
decisions for them. By choosing an alternate
process, spouses and parents maintain
control over how long their divorce will
take and how much their divorce will cost in
legal fees. Most importantly, they maintain
control over how they choose to behave and
conduct themselves during this tumultuous
time of their lives.
By choosing the process through which
difficult divorce and custody conversations
will take place, individuals find they
retain more independence, knowledge,
accountability and peace of mind. They find
they are more able to create the best
possible future for themselves and their
children. A continuum of
alternatives Mediation,
Collaboration, Principled Negotiation,
Facilitated Negotiation and Arbitration are
best understood as being on a continuum.
Collaboration, discussed in the next
section, is the farthest from litigation.
Arbitration is the closest.
Mediation is participant driven. The
husband and wife sit down with a trained
family law mediator. This person helps them
define their interests and arrive at
mutually beneficial resolutions.
Generally, mediations are conducted without
attorneys. In fact, it is common for
families in mediation to consult with an
attorney only after the principles of a
settlement are already defined. The role of
the mediator is not to give solutions or
answers to the participants, but to help
them use proven methods to resolve their
issues.
Principled Negotiation and
Facilitated Negotiation sit between
mediation and arbitration. These two
processes call for the ongoing involvement
of husband and wife. The attorneys play
complementary and somewhat fluid roles.
There may be meetings conducted with all
four people (husband, wife and both of their
lawyers) and some between only the
attorneys. Should an impasse be reached, a
neutral third-party can be brought in to
facilitate the negotiations.
Arbitration is the opposite of
mediation. The parties take a back seat
while lawyers essentially try their case
before a neutral third-party. This is a less
formal and more efficient private form of
dispute resolution than trial.
Through their respective counsel, each side
chooses an arbitrator who listens to their
disputed issues and analyzes the presented
evidence. At the conclusion of each party’s
presentation, the arbitrator issues a
decision. Depending upon the style of
arbitration, this decision could be binding
or non-binding. Collaboration’s
higher commitment to settle without
litigation In mediation,
arbitration, principled negotiation and
facilitated negotiation the participants can
go to court and litigate should a complete
resolution not be reached. In collaboration,
the attorneys agree to resign if the couple
decides to litigate their differences.
In a collaborative process, the clients and
their attorneys meet in four-way meetings
designed to provide complete transparency
over the entire process. All financial
information can be freely exchanged without
fear or apprehension that the other will
manipulate the disclosure.
This is because all of the participants
agree at the outset that should the matter
go to litigation, the collaborative
attorneys will terminate their
representation. It is this disqualification
which defines the integrity of the
collaborative Process. All of the
participants have as much to lose as the
other in the event resolution is not
reached.
There is nothing gained by manipulation,
deception, or the proverbial cheap shot!
When one party misbehaves, there is full
accountability within the collaborative
process—not to a Judge, but to each other.
Apprehension is normal It is
normal for people contemplating divorce to
feel hurt, confused, scared and angry.
Eventually all divorcing couples find that
what they truly wish to do is get on with
their lives. The divorcing process is a
necessary evil to reach that goal.
If divorce is unavoidable, why not choose a
process which allows for the most
constructive solution rather than a
destructive conclusion? ADR is not for
everyone. However, for the vast majority of
family law matters, alternatives to
litigation are effective and efficient
methods to resolving distasteful issues.
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