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The Meaning of Alternative Dispute Resolution: And how it impacts your divorce

What is Alternative Dispute Resolution?

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Shared cusstody on The Smart DivorcePeople who need family lawyers are different from people who need other types of lawyers. If you are going through a separation or divorce, or if you need help with child custody or access, child or spousal support, or a children’s aid society issue, your case is about your life.

John Schuman with Deborah

John Schuman with Deborah

The lawyer you choose, and how the separation agreement is settled will also determine how amicable or adversarial the divorce process is, once again impacting your life.  In this episode of The Smart Divorce with Deborah Moskovitch, family law lawyer, John Schuman helps us understand the differences between all of the Alternative Dispute Resolutions to consider when coming to a separation agreement.  We discuss the importance of staying out of court, but also when it might the only option.   John has litigated before every level of court in Ontario, so readily understands the outcomes – not only from a decision perspective, but the impact on emotions as well.

For more on John Schuman, visit: http://www.devrylaw.ca/ and read Nobody Asks Where I Want to Live at:http://www.devrylaw.ca/wp-content/uploads/2011/11/ConsenttoTreatmentandParenting.pdf.

Don’t forget, Like us on our Facebook pages, The Smart Divorce and Divorce Source Radio.  Join the community!

To hear this podcast click here


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What are the dispute resolutions?

You have choices and options to arrive at your separation agreement.A smart divorce means doing the research and gaining the understanding of these options so that you are making your decisions with confidence.

Do it yourself

This is the situation when separating couples to try reach an agreement without legal counsel.When I conducted my research for my book, The Smart Divorce, not one lawyer recommended this option. They didn’t support this option because they felt it is imperative that people understand their rights in terms of what they are entitled to and financial responsibilities and obligations with regard to spousal support and child support.For example, you could be giving away or not getting your most important assets; you might not be doing what is in the family’s best interest.If you do decide to go this route, you should at least consult with a lawyer first to get independent legal advice to understand your rights.

Negotiation

Think of negotiation as taking your wish list regarding how you divide your assets and what your parenting responsibilities should be and use this list as a starting point for what you end up with. It’s me and my lawyer versus you and your lawyer finding a compromise– all with the goal of reaching an acceptable middle ground.It’s me versus you with our lawyers beside us.Usually, we’re both trying to get as much as possible.

Now if you have to go to court, negotiation takes place too.The purpose of negotiation here is using it to avoid trial. When people file lawsuits there’s an expectation that there will be some maneuvering and bargaining and eventually a settlement will occur rather than full blown court with trial.The typical pattern is to use the threat of trial to get people to bargain and stay out of court.

Mediation

Mediation is using a mediator – It’s using the help of a neutral third party to help the divorcing couple reach a separation agreement together.A mediator is the problem solver helping the couple arrive at an agreement by helping them communicate with each other– a good mediator will help the couple identify issues and explore choices that they hadn’t thought of on their own.

Another benefit is that for some couples mediation is more cost effective because they are splitting the cost of a mediator, rather than paying hours separately with their individual lawyers.Many lawyers and clients like it because it gives both sides more control over the final outcome, but it does require that you be willing to work together, there is honesty and full disclosure about the finances.

A mediator can be a lawyer or a mental health professional.Most lawyers prefer that when you are mediating financial matters that your mediator be a lawyer.

Collaborative family law

The concept is that the lawyers work strictly toward settlement. Clients and their lawyers sign a contract in which they agree not to go to court, and to provide full and complete financial disclosure. The purpose of collaborative law is to create an environment in which the separating couple feels safe, in which both parties feel that they are able to make informed decisions about their own destinies, and in which they can work constructively despite their fears, anger, and feelings of revenge.

The lawyers fulfill their traditional role of advising their own clients on how the law applies to their individual situations. But they also help their clients to reframe their thinking–to develop goals as opposed to taking positions, and to make good and ethical choices. If either client wishes to end the collaborative process and go to court, both lawyers and other members of their firms must remove themselves from the case.

Arbitration

Arbitration is much like litigation in that you go to court in a sense, but it is outside of a courtroom. It is a private process. The divorcing spouses together with their lawyers pick a decision maker, who is usually a retired judge or senior lawyer with family law experience.

What happens in arbitration is that the decision being debated between the couple is imposed by the arbitrator.Unlike mediation, no one helps the couple come to an agreement; the decision is made for them. And, usually, if you don’t like the decision, it can’t be appealed which means, you can’t argue it out again for the decision maker to change his or her mind.

Litigation

I’m not saving the best for last; this is last because litigation is usually the option of last resort.Going to court.It’s emotionally difficult and financially, very expensive.

Who remembers Perry Mason?– when you’re up on the stand and your lawyer is asking lots of questions and all of a suddenthere is this aha moment by the judge and yes, it’s determined you are right and the other side is wrong and justice is served.It’s his word against hers and the battle starts from there.The lawyers try to poke holes in your persona showing that you are unfit.That’s why it is called the adversarial process.There is one winner, and one loser.It’s not a win – win situation. It’s a war and there are distinct sides.

Like arbitration, the decision is made by a third party.Unlike arbitration, you can’t pick your decision maker and the judge doesn’t always have family law experience.Another difference is that arbitration is private, going to court is public.Being public means that there is a public record of the dispute.

For a more comprehensive analysis of the dispute resolutions readThe Smart Divorce: Proven Strategies and Valuable Advice from 100 Top Divorce Lawyers, Financial Advisers Counselors and Other Experts (available wherever books are sold)


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How the Brain Can Make Divorce Smarter

Did you know that your brain can help you through divorce in a much smarter, more emotionally balanced way?  There is tremendous scientific knowledge about the brain yet the legal system is slow at integrating it.

Our guest, Nathalie Boutet (http://www.basmansmith.com/i3boutet.asp) (http://www.collaborativelawblog.ca/about-nathalie-boutet) explains what we have known for years – that our cognitive abilities diminish when we are experiencing strong emotion. Separating clients are frequently in a state of high emotions stemming from years of unhappiness in their marriage. They are likely to encounter many instances when they will get emotionally triggered during which time their ability to think and reason will be diminished. Yet we demand that separating parents co-parent effectively and work together amicably to resolve complex financial decisions.

Nathalie Boutet on Divorce Source Radio

Nathalie Boutet

Separating families, and especially the children, the innocent victims, suffer tremendously before, during and after the legal separation process.

How can you get through your divorce with the brain in mind? Ms. Boutet answers this question and more as we discuss:

  • Some of the causes of divorce and how the brain is affected
  • If people are struggling and don’t want to divorce, what can they do?
  • What makes a divorce easier/more difficult
  • How does brain science intersect with family law?
  • What are some of the pitfalls that people fall into– and what happens

This interview will help you understand how to bring in the humanity while divorcing all while being brain friendly.  Sounds intriguing doesn’t it…..it’s an conversation you don’t want to miss.

Don’t forget to LIKE our facebook fan pages, and check in often for updates and more information.

Click on the link to hear this powerful interview

http://www.divorcesourceradio.com/how-your-brain-can-make-divorce-smarter/


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Mistakes We Make During Divorce and How to Avoid Them

This time the spots are switched, I’m interviewed by my c o-host Steve Peck on his show, Divorce Source Radio. Tune in to hear the mistakes often made during divorce.

Divorce is an extremely emotional time in our life and under stress, we don’t always make the right choices.

The legal system is confusing and frightening and we sometimes let our anger get the best of us creating a battle with our soon to be ex that can last a lifetime and affect the lives of our children and our finances.

In this episode, DSR host Steve Peck, speaks with Divorce Consultant and author of The Smart Divorce, Deborah Moskovitch on how to avoid costly mistakes during divorce.

Listening to this show if you are new to the process of divorce can save you thousands of dollars in legal expenses, the relationship with your children and your sanity.

Click on the link below to hear the interview, to save time, money– and your sanity.

http://www.divorcesourceradio.com/mistakes-we-make-during-divorce-and-how-to-avoid-them/


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Getting through divorce while saving time, money – and your sanity.

Introducing The Smart® Divorce Resource Toolkit

The Smart Divorce® Resource Tool Kit is now available, order yours today– one easy phone call or email, to get this valuable resource.  It’s one of the  most comprehensive programs providing a full overview of the divorce process — and endorsed by judges, lawyers, and mental health professionals.  The Smart Divorce Resource Toolkit will help you make smart decisions for you and your family – taking you through the entire divorce process, removing the mystery and misconceptions about the outcomes of divorce, how to cut down on your legal bills and so much more.

This comprehensive resource  provides an understanding of all aspects of the divorce process; helping you understand the two sides to your divorce – the “emotional divorce” and the “legal divorce”

Move through your divorce with focus, hope and confidence.

The Smart Divorce Resource Toolkit makes the divorce process easy to understand, helping you to be strategic while making sound, smart decisions.  After all, information is knowledge and knowledge is power.

   Call 905 695 0270 or email info@thesmartdivorce.com to get your copy of The Smart Divorce Resource Toolkit. 

Included in The Smart Divorce Toolkit are tips, strategies and ideas, packaged as never seen before.  This smart toolkit comes with:

The Smart Divorce Resource Toolkit is designed specifically to meet your needs — to help reduce stress, educate and inform you about the divorce process in a cost effective, easy to understand way. Guidance and information from leading family law lawyers, mental health professionals, and parenting experts well versed on the needs of those in the divorce process are included.  And, it’s put together in one smart package, making it uncomplicated, and effortless to understand.

The Tool Kit contains 4 CDs covering the myriad of issues, concerns and questions most people have about divorce – removing the mystery, complexity, and confusion about divorce.  Also included are Smart Guides which add another layer of detail to The Smart Divorce Audios, and provide a step by step plan for going through the divorce process.

The Smart Divorce Audios. 

These unique and informative CDs provide tips and strategies to help navigate this difficult time, educate listeners about the divorce process and provide practical information on getting through it with focus, hope and confidence.

  • Audio 1 – The Emotional  Divorce
  • Audio 2– The Legal Divorce
  • Audio 3 – Smart Co-Parenting: Putting Your Children’s Best Interests First
  • Audio 4 – Rebuilding Your Life Post Divorce

Smart Guides.

Tip sheets that support the information in the audios providing detail and understanding of the specific topic.

Smart Guides:

  • Planning for a Smart Divorce
  • Getting Your Finances Organized for Divorce
  • Coping with the Stress of the Emotional Divorce
  • Coping with Stress in a High Stress Environment
  • Understanding Your Divorce Options
  • Finding a Good Divorce Lawyer
  • Smart Co-Parenting
  • Living Separate and Apart
  • Strengthening the Blended Family Bonds
  • Divorce Financial Check List
  • Understanding Marital Property Laws
  • Important Financial Steps Required to Prepare for Divorce

Don’t delay, order your kit today

Call 905 695 0270 or email info@thesmartdivorce.com to get your copy of The Smart Divorce Resource Toolkit.


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The Smart Divorce Workshop Series – Space Still Available

The Smart Divorce® Workshop Series

 

These workshops are appropriate for individuals contemplating or already experiencing a divorce. Strategies for reducing financial costs and personal turmoil will be presented. Participants will learn what to expect legally and emotionally, and so be able to move through the process with confidence and focus while saving time and money. A subsequent session will address parenting issues, how to work with parenting experts more effectively, and available resources. Feedback from therapists and lawyers has indicated that The Smart Divorce Workshops have helped to prepare individuals for the process and make them better clients.

 

I have added two new workshops to the series called – Taking Control of Your Finances – with guest speakers Atsuko Hiroaka and Aaron Nimon, both Investment Advisors of BMO Nesbit Burns. The focus of these sessions is to help manage and effectively deal with your financial concerns; how to overcome your fears and understand the financial considerations as you work through the divorce process and postdivorce concerns.

 

Click on the link for more information: the-smart-divorce-workshop-f09-2-finr1

 

Program details:

 

The Smart Divorce: Learning the Basics – February 4, 2009

 

The Smart Divorce: Taking Control of Your Finances – February 11, 2009

with Guest Speaker, Investment Advisor – Aaron Nimon of BMO Nesbit Burns

 

The Smart Divorce: Parenting Through Divorce – February 18, 2009 2008

 

The Smart Divorce: Taking Control of Your Finances – February 25, 2009

with Guest Speaker, Investment Advisor – Atsuko Hiroaka of BMO Nesbit Burns

“Your seminar game the confidence I needed to start my divorce. I know what to do now and feel I’m not alone.” Dave C. Toronto

“I met a client who took your seminar today. An educated client makes this work so much easier!” Jacqueline Vanbetlehem, Mediator and Family Therapist in Oakville

Location: 12 Lawton Boulevard, Toronto (Yonge and St. Clair)

Registration Fee: $25 per workshop

Call The Smart Divorce at 905 695 0270 or email info@thesmartdivorce.com

SPACES ARE LIMITED, CALL TODAY


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The Smart Divorce Workshops


New workshops have been added:

Limited space is available in The Smart Divorce® Workshops. These workshops are appropriate for individuals contemplating or already experiencing a divorce. Strategies for reducing financial costs and personal turmoil will be presented. Participants will learn what to expect legally and emotionally, and so be able to move through the process with confidence and focus while saving time and money. A subsequent session will address parenting issues, how to work with parenting experts more effectively, and available resources. Feedback from therapists and lawyers has indicated that The Smart Divorce Workshops have helped to prepare individuals for the process and make them better clients; while saving them time money – and their sanity.

Program details:

The Smart Divorce: Learning the Basics –

September 16, 2008

The Smart Divorce: Parenting Through Divorce –

September 23, 2008

Time: 7:30 – 9 pm

Location: 12 Lawton Boulevard, Toronto

(Yonge and St. Clair)

For more details, click on the pdf file below:

the-smart-divorce-workshop-invitation-sep08-pdf

If you feel that you could benefit from these workshops or for more information please contact Deborah Moskovitch at 905 695 0270 or by email at info@thesmartdivorce.com.


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Developing Your Separation Agreement

Considering All the Divorce Options

Did you know that there are options to arriving at your separation agreement? Going into my divorce, I didn’t realize there were any options. Maybe I watched too much TV, but my perception was that everyone went to court and litigated–went to trial before a judge. I was completely wrong. I didn’t understand that litigation is not the preferred method of resolution. All lawyers would agree that in most situations, it is the method of last resort; it usually signals a breakdown in negotiations outside the courtroom. The other options besides litigation are called alternative dispute resolutions, or ADRs.

The best-practices thinking is that ADR ought to mean

“appropriate dispute resolution,”

of which litigation is one choice.

Understanding each ADR process is vitally important. Although no one should walk into a lawyer’s office and immediately say, “I want dispute resolution X”–lawyers evaluate which dispute resolution process to pursue based on the nature of the problems and issues–being aware of your choices can help you maintain control and contribute to making decisions with confidence.

Which option provides the best outcome?

All of these modalities can produce either a good outcome or a bad one. Mediation, arbitration, trial–nothing about them, alone, predicts either a good or bad outcome. All carry variables such as a good judge or a bad judge, a good mediator or a bad mediator, a good lawyer or a bad lawyer.

There are five ways to come up with your separation agreement without going to court. You should be well informed about these when considering the best way to arrive at your separation agreement. Why does this matter? It matters because it’s not always about going to court.

The truth is, there is no such thing as revenge in divorce, the only thing you will get are legal bills.

What are your choices and options?

  • Do-it-yourself
  • Negotiation
  • Mediation
  • Collaborative family law
  • Arbitration
  • Litigation

Which Option Is Right for You?

Even choosing which dispute resolution option to take can become a fight for a divorcing couple. Don’t invest yourself in particular outcomes. Your goal should be as reasonable a dissolution of your marriage as possible under the circumstances. You do not have–and you will not be able to get–complete control of the options or of how the other side acts within them.

A good lawyer will emphasize that it is extremely unlikely that anyone is going to walk away having won completely. I’ve been told by many lawyers that they make most of their money from clients who are stubborn. But many lawyers also say that they would accept slightly lower fees for easier clients, even if they have to take on more clients to make up the difference.

Information about dispute resolutions and more is covered far more comprehensively in The Smart Divorce: Proven Strategies and Valuable Advice from 100 Top Divorce Lawyers, Financial Advisers, Counselors and Other Experts. Available wherever books are sold, amazon.com, amazon.ca, barnesandnoble.com and many other webseller book sites.