The Lake County Women's Journal

Divorce Like There Is A Tomorrow!

What you need to know today, about choices, control and the future when the end of marriage is unavoidable.

By: Manav H. Raj, ESQ

For most people facing the end of their marriage, the assumption is that 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, thousands of dollars, and financially destroyed their entire family. What those people don't talk about is the amount of emotional trauma and the non-economic cost of that courtroom battle. They don't mention the irreparable damage that they caused to their children, their families, their friends, and most of all, to themselves.

It is a very commonly quoted statistic that 50% of all 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? If we teach our children life lessons through our actions, what lessons are we teaching when we go into "war" with the mother or father of that child?

There is an alternative to the litigated ugly, contentious and divisive divorce. That alternative is generally referred to as Alternate Dispute Resolution (or ADR).

The different methodologies of ADR as they apply to Family Law include, 1) Mediation, 2) Collaboration, 3) Principled Negotiation, 4) Facilitated Negotiation, and 5) Arbitration. These processes are each unique, but all are designed to avoid the high cost (both emotional and financial) of a litigated divorce proceeding. By empowering both spouses to choose a time-tested, court-approved method for ending their marriage and settling their parenting issues, ADR gives back to clients what they lose in litigation: CONTROL OVER THEIR LIVES AND THEIR FUTURES.

Through an alternate process (those five ADR methods), husbands and wives, moms and dads, maintain control over how long their divorce will take, how much their divorce will cost (legal fees), and most importantly, they maintain control over how they choose to behave and conduct themselves during this tumultuous time of their lives. By being involved in defining the process by which these difficult conversations are going to take place, individuals find that they have (or gain) independence, knowledge, accountability, and most of all, peace of mind during this very important change in their lives. By empowering themselves, individuals throughout Northeast Ohio are finding that they are able to create the best possible future for themselves and their children.

The different processes (Mediation, Collaboration, Principled Negotiation, Facilitated Negotiation and Arbitration) are not uniquely distinct. Rather, they are best understood as being on a continuum.

Mediation is a process which is extremely participant driven. Both Husband and Wife sit down with a trained Family Law Mediator who helps them to define their interests and arrive at a mutually beneficial resolution. Generally, mediations are conducted without attorneys being present. In fact, it is very 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 rather to help them to find answers to their problem.

The opposite of Mediation is Arbitration. In Arbitration, the parties take a back seat to their lawyers who essentially "try" their case to a neutral third-party. This is simply a less formal and more efficient private form of dispute resolution. Both parties, through their respective counsel, choose an Arbitrator who listens to their disputed issues and analyzes the presented evidence. At the conclusion of each parties' presentation, the arbitrator issues a decision. Depending upon the style of Arbitration, this decision could be binding or non-binding.

Between the two extremes of Mediation and Arbitration are Principled Negotiation and Facilitated Negotiation. The essence of each of these two processes is the ongoing engagement of both husband and wife, with their respective attorneys playing complementary, and somewhat fluid, roles. There may be meetings conducted with all 4 people (husband, wife and both of their lawyers) as well as some meetings only between the attorneys. Should an impasse be reached, by agreement of the participants, a neutral third-party can be brought in to facilitate the negotiations.

In all four of these processes, should a complete resolution not be reached, the participants (lawyers and clients) have the ability to go to Court and litigate. This option of litigation is what sets Collaborative Law apart from the others.

In a Collaborative, the clients and their respective counsel meet in four-way meetings designed to provide complete transparency over the entire process. All financial information is freely exchanged between the parties without the fear or apprehension that the other will manipulate the disclosure. This is because all of the participants agree at the outset of a Collaborative that in the event that the matter must go to litigation, the collaborative attorneys will both terminate their representation.

It is this disqualification which defines the integrity of the Collaborative Process. All of the participants, Husband, Husband's Collaborative Counsel, Wife, and Wife's Collaborative Counsel, have as much to lose as the other in the event that a 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 accountability to a Judge, but to each other.

It is very normal for people contemplating divorce to feel hurt, confused, scared and angry. However, 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 very distasteful issues.

Mr. Raj is an attorney with the law firm of Dworken & Bernstein. A graduate of Walsh Jesuit High School, The Ohio State University and Cleveland-Marshall College of Law, Manu's practice is limited to Domestic Relations & Juvenile Law.

In addition to practicing family law in Lake, Cuyahoga, Ashtabula, and Geauga Counties, Mr. Raj is a founding member and past President (2004) of the Center for Principled Family Advocacy. He is also a Life Member of the Who's Who Distinguished Lawyer of America and is a speaker and trainer in numerous topics related to Domestic Relations Law and ADR.