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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.

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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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Resolve Custody Conflicts in Divorce

New on The Smart Divorce – Resolve Custody Conflicts in Divorce

You can protect your kids through Divorce Without Dishonor, and our guest, Mike Mastracci tells us how to resolve custody conflicts in divorce.  Author and lawyer, Mike Mastracci is a nationally recognized family law attorney and mediator with over 20 years of professional experience. He is the author of STOP Fighting Over the Kids, Resolving Day-to-Day Conflict in Divorce Situations.  (To receive a FREE copy of Mike’s book, send your request to: DivorceSourceRadio@gmail.com and the E-book will be emailed to you.)

Stop fighting over the kidsIn addition to his legal, collaborative and mediation skills, Mastracci brings much more to the table: with an insightful, kind and helpful approach. He shares his personal child custody issues and challenges to better serve you in solving your legal, practical, parental, and situational problems.

Mr. Mastracci through his common sense approach provides insight, strategies and an invaluable understanding of Court, costly custody battles. Mastracci encourages divorcing couples to educate themselves in the Collaborative Divorce method whereby they can demonstrate by their words and actions that they love their children more than they may dislike their ex. Mike will frankly tell you that contested divorce and child custody litigation is more often than not a waste of time, money and emotional wear and tear.
Mastracci is committed to preserving parent-child relationships.

To hear this interview, click on the link http://www.divorcesourceradio.com/resolve-custody-conflicts-divorce/


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The Smart Divorce Audio Series Now Available

Get through your divorce as you save time, money – and your sanity! One low price gives you the complete Smart Divorce ToolKit –audios and Smart Guides – a cost-effective way to reduce stress as you help clients and manage the divorce process.

Endorsed by judges, lawyers and mental health professionals, The Smart Divorce ToolKit provides 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. This one smart package makes it uncomplicated and effortless to understand.

Reassuring, informative and easy to listen to, The Smart Divorce  Smart Audios offer more than 2.5 hours of presentations, full of insightful tips and strategies to help you navigate this difficult time.

Deborah Moskovitch educates listeners about the divorce process and provides practical information on getting through it with focus, hope and confidence. She teams with psychologist Dr. Robert Simon , an expert on divorce, relationships and families – with a special focus on children of divorce and custody conflicts.

Audio 1 – The Emotional Divorce

Understand that every divorce has two sides: legal and emotional. The Smart Divorce Audio 1 gives you strategies and tips for coping in healthy ways with your emotions, so you can make clear-headed decisions for your children and yourself. (37.24 minutes)

Audio 2 – The Legal Divorce

Empower yourself by knowing what’s ahead. The Smart Divorce Audio 2 helps you understand how to organize, prepare and work towards a realistic, favorable outcome for you and your family. From selecting the right legal advocate to exploring other divorce options, The Legal Divorce helps you manage the practicalities and take charge of the process. (45.24 minutes)

Audio 3 – Smart Co-Parenting: Putting Your Children’s Best Interests First

Help your kids think of themselves as regular kids, not the children of divorce. The Smart Divorce Audio 3 helps you understand what they are going through, and talk to your children about the divorce. Learn the challenges and issues of co-parenting, and how to make it work. Move forward, maintaining positive connections with your children. (40.61 minutes)

Audio 4 – Rebuilding Your Life Post Divorce

Divorce is a hugely emotional time. But it’s also an opportunity to reevaluate your life and make it better than it was before your divorce. The Smart Divorce Audio 4 helps you embrace an uncertain future, and move forward with focus, hope and confidence. It gives you coping strategies for dealing with your former partner, and ways to develop your most important and lasting relationship: with yourself. (33.66 minutes)

For more information and to buy these informative videos click on the link:

http://www.cdbaby.com/Artist/DeborahMoskovitchAndRobertASim

If you would like to learn more about this unique and innovative program, and how it may help you, please contact Deborah Moskovitch at The Smart Divorce by emailing info@thesmartdivorce.com, or call 905.695.0270.


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How to Be Smart About Mediation

Understanding what mediation is as a process, and finding the right mediator, are critical elements to developing  smart and long lasting parenting and financial agreements that are predicated on informed, thoughtful decision making.  A good mediator will discuss what your goals are for the process, what is important to each of you and will help you to craft a plan that addresses those goals and intentions.  This is important to understand, as all mediators are not created equal!

Our guest, Cara Raich, (http://www.srmediators.com/mediators/cara-raich-esq/)  (http://mediatetrix.wordpress.com/) explores the specifics of mediation in this episode of The Smart Divorce, with Deborah Moskovitch and Steve Peck.   Cara is a mediator and attorney who specializes in helping people find non-adversarial resolutions to conflict. She mediates a wide range of cases including divorce, family conflicts, and organizational and civil disputes.

Cara is dedicated to helping her clients avoid the challenges and acrimony that frequently accompany adversarial proceedings. She does this by enabling her clients to come to realistic and informed agreements that work for them and their families. Cara believes that separation and divorce are family matters with a legal element, not a lawsuit that happens to be about a family.

To understand how these goals are accomplished in a fair and reasonable manner – and gain perspectives on alternative ways to view mediation and settlement we discuss:

  • What does neutrality really mean?
  • What are the process choices that people have when contemplating divorce?
  • How do we as a society view divorce?
  • What is a successful divorce?
  • What is the role the law will play in your divorce? Is the law relevant, determinative or something in between?

This interview will surely help you understand the many aspects of mediation.

To listen, click on the link http://www.divorcesourceradio.com/be-smart-about-mediation/ 


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Downgrading Divorce From Crisis To Process In The Workplace

As published in The Huffington Post

Divorce or the breakdown of a relationship is an extremely emotional process. People are often confused, filled with fear and unsure of how to navigate the process. Their world is turned upside down, triggering unsettling and distressful emotions. The effects of the emotional distress in the workplace can be devastating.

Close to 50 percent of marriages in North America end in divorce. The divorce rate rises to a staggering 60 percent and higher for subsequent divorces by these same individuals. Clearly, we need to employ strategies that will get everyone, including those caught in the middle — often the children — off the “divorce-go-round” and on to a better life. We need to encourage healthy new beginnings, even when divorce looks like an end.

On a classic rating scale of stressful life events, divorce consistently ranks number two — second only to the death of a spouse or child. People often feel overburdened and lack confidence, so it’s not surprising many buckle under the pressure.

Divorce undoubtedly reduces a worker’s productivity. According to John Curtis of Integrated Organizational Development in Waynesville, N.C., the cost per worker going through a divorce is about $8,300, assuming an average wage of $19.50 per hour and a 50 percent to 75 percent drop in productivity. That estimate also includes days missed as the worker takes time off to deal with the legal, financial and psychological issues related to divorce.

 To read the whole article click on the link


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The Financial Realities of Divorce

The Finances of Divorce

A client came into my office the other day in tears. She was just about to sign papers to purchase her new home, but was now feeling unsure of her decision. My client was in the middle of negotiating her financial agreement and wanted to prepare herself for the fresh start she desired once her divorce became final.

After a few more tears and 30 minutes of talking, she began to understand how the “emotional divorce” could impact “the legal divorce.” What this means is that there are two sides of divorce to wade through — the emotional and the legal. Divorce is upper-case Emotional, and if not managed properly, it can wreak havoc on the legal process and financial outcomes. While it would be really nice if the two elements could be handled one after the other — you could spend a few years dealing with the emotional issues, and then, heart and head clear, go through the legal process — but the truth is that emotions and legal processes cannot be clinically separated, and usually have to be managed at the same time.

To read the rest of my article which appeared on The Huffington Post, click on the link

http://www.huffingtonpost.com/deborah-moskovitch/the-finances-of-divorce_b_1214050.html