A large difference between traditional litigation negotiation and negotiation in the collaborative process is the positional bargaining is used in traditional litigation while interest based negotiation in used in the collaborative process.  It is important to have an attorney skilled in interested based negotiation when participating in the collaborative process.  The focus is on reaching a settlement that meets both the needs of your client and of his/her spouse.   There can be many settlements that meet this purpose and having competent counsel can insure that the settlement reached is the best for you.

            The key components of interest based negotiation are as follows:

Interests: Whatever position each side is taking, the key to the negotiation is to reach an outcome that meets everyone’s interests.  It is important that the attorney takes the time to truly understand both his/her client’s interests and the other party’s interests.

Options: A good outcome should be the best possible way to meet all parties’ interests.  The more options that the parties can come up with, the better chance of reaching the best option.

Alternatives: A good outcome should seem better than all other alternatives on the table.  Before reaching an agreement, the sides should know what the alternative would be if no agreement is reached.  In a collaborative case, that option is the uncertainty of litigation.

Legitimacy: External objective standards are helpful in allowing both sides to feel that the outcome is legitimate.

Communication: Effective communication will lead to both an efficient and beneficial outcomes.  This involves both listening to the other side and properly educating them about your side’s interests.

Relationship: At the end of the negotiations, the relationship between the parties should be improved rather than further damaged. 

Commitment: The quality of an outcome is measured by the quality of the promises that are made.  Both sides need to make sure that the agreement is one that both sides can actually carry out.

A question that clients frequently ask in an initial consultation is why they should use the collaborative process instead of mediation.  Given the lack of general public knowledge regarding collaborative divorce, this is not a suprising question.  Clients often come upon collaborative divorce via interest in resolving their divorce without lawyers.  They view mediation as a way to resolve the dispute without having the expense and percieved animosity that comes from using attorneys. 

While I am supportive of the benefits that mediation can provide, there are a few real differences between mediation and collaborative divorce that a client should know about:

1.  Power imbalance.  In a mediation without attorneys it is easy for the spouse with greater power in the relationship to control the result.  For instance, a spouse who is guilty about having an affair may give up much more than he/she should from a sense of guilty; or a stay at home parent who has never been in charge of the finances may not ask for what he/she deserves due to a lack of knowledge or about the finances.  The mediator, as a neutral party, cannot step in and advocate for the spouse with less power.  In the collaborative process, each party has an attorney to make sure that the power imbalance is taken out of the process.  The lawyers, in fact, will work together to smooth out any imbalance in order to reach a fair agreement.

2.  Interest based negotiation.  Even though a lawyerless mediation is based around the idea of amicably reaching agreement, it still uses positional negtiation.  Each party takes a stance and the mediator helps them meet in the middle.  Collaborative divorce, on the other hand, used interest based negotiation.  The parties try to reach an agreement based upon their interests rather than hard positions that they will not back off of.  A mediator is often happy with an agreement that both spouses do not really like but that they will agree to.  In a collaborative divorce, the lawyers work with the parties to reach an agreemen that they both like.

3.  Advocacy.  Divorce is a stressful process.  People manage the stress and emotions differently.  Without an objective advocate, it is extremely difficult for a spouse to think through the complex peronsal and financial issues that need to be resovled in a divorce.  The collaborative process provides not only attorneys to assist with this, but also divorce coaches who can help the parties manage their emotions and keep them from getting in the way of the optimal result.

The lawyers at Stepehens Margolin P.C. welcome these discussions.  Contact the office to schedule a consultation to find out more about how the collaborative divorce process can assist you.

In today’s legal environment couples facing a divorce have a realm of dispute resoultion options.  Give the current economic situation, and its affect on state budgets, it is likely that trial court resources will be less available than ever in the coming months and years.  In order to make an informed decision on how best to proceed with a divorce it is important to have an understanding of the dispute resolution spectrum.

At one end of the spectrum is Trial where a court decides a case regarless of the parties’ interests and needs.  This end of the spectrum provides less privacy, less control over the process, very little control over the outcome, little flexibility in the options for resolution, less individual results, more third party control and a great deal of expense.  This end of the spectrum is also slower and less efficient.  At the other end of the spectrum is negotiation without lawyers between couples directly.  This allows for more privacy, control, and very little cost.  The downside is that the spouses do not have access to experts who can help them understand the options that are out there and make sure that they are addressing all of thier needs.  About one-third of my clients and people who tried to do a divorce on their own and are coming to me to clean up the mess.  This is almost always more expensive and provides less options than if they had come to me originally for a full blown litigated divorce. 

Closer to that end of the spectrum is collaborative divorce.  Collaborative divorce allows for both the expertise of lawyers and other professionals and the benefits that come outside of the court process.  These include a faster and more efficient outcome, more control over the process, total control over the outcome, interest based results, low third-party intervention, lower cost and a great deal of individualization.

At the end of the day each point on the spectrum is the right fit for a number of people going through a divorce.  It is important to meet with a collaboratively trained lawyer in order to understand which fit is right for you.  The lawyers at Stephens Margolin P.C. are collaboratively trained and can help you with this choice.

I wish to thank Pauline Tesler and her book “Collaborative Law” (which can be ordered from the ABA web store by following this link:  http://www.abanet.org/abastore/index.cfm?section=main&fm=Product.AddToCart&pid=5130160) for much of the information contained in this post.

If you see clients who are in the process of dissolving a marriage, you are already aware of the horrendous stress divorce places on everyone involved. A process that is essentially legal and financial has impacts that can be psychologically devastating.

I bet you see clients all the time whose stress stems in part from insufficient understanding of their own finances. Stress over money issues is heightened in divorce, a time when the parties must make life-altering decisions in an arena in which they may have little aptitude or training.

It pains me to see clients who seem totally lost when it comes to deciphering net worth statements and property division proposals. They don’t know which way to jump, and their anxiety levels are off the chart.

You probably also see clients going through divorce whose anxiety is rooted in a nagging sense of financial insecurity. Their fear may present itself as anger, tears, bravado, withdrawal, and belligerence – none of which are of much help in crafting a strategy for moving forward.

I work with clients every day helping them map out the long-term financial considerations of life after divorce. A tool I use is a proprietary financial modeling software that graphically demonstrates the long-term impact of all the financial “what if’s” included in various settlement proposals.

The stories the graphics tell can be compelling. Strong visual images help clients get their brains wrapped around the often complex financial implications of divorce. Financial information presented graphically can also prove quite persuasive in the negotiating process.

My expertise ensures that the inputs are reasonable and the results reliable, adding to my clients’ comfort level and providing them firmer ground on which to stand in court. Knowledge is power, and when my clients feel better informed, I find they make better decisions.

Interestingly, I am seeing a noticeable increase in the number of clients whose marriages are ending later in life. At first blush, you might expect these divorces to be somewhat easier on the parties: The children are older and on their own, there is a lot more equity in the house, and there are plenty of assets to divide.

Instead, the stress seems to be worse in many cases. Why?

Part of the reason is the way we traditionally run families in this country. Typically, one spouse has primary responsibility for the generation and disposition of income. And typically, that partner is the husband. He earns the income, he determines or administers the household budget, and he makes most of the decisions on investments and savings.

In contrast, the wife who has spent decades doing what culture and tradition say she should – running the household and raising the next generation –may not have paid sufficient attention to what the family’s assets really are, where they are, and what they are worth.

While one partner has been out in the business world adding to his experience, earning power, and contacts, the spouse who has been at home (or who has been chronically underemployed in order to “be there” for the family) fears she is not as employable as her younger, better-educated counterparts competing for the same jobs.

It’s important to note that Oregon law recognizes the concept of “spousal maintenance” in divorce. It’s a good concept that the individuals who contributed to the marriage should expect a reasonable level of financial support should the partnership fail.

In practice, spousal maintenance can be disappointing. The courts with which I am familiar use financial “snapshots” to determine a fair level of spousal maintenance. The focus is on today’s assets and today’s balance sheet with limited regard for how asset values change over time.

That philosophy of emphasizing the short-term is magnified when it comes to division of assets in the final divorce decree. In every jurisdiction in which I work, the courts use financial modeling software that projects the future value of assets for the next 36 months – a span of time shorter than the typical car loan.

The only argument I have heard in favor of this limitation is that no one really knows what is going to happen to markets or jobs or residential values in five, 10, or 15 years, so it would be unwise and unfair to project the value of an asset in a divorce proceeding beyond 36 months.

Perhaps. But I would be very surprised if anyone would make decisions about their own personal finances or retirement plan based on financial projections that hit a wall at 36 months. People expect to see beyond the nearest horizon when they make long-term financial commitments. And rightly so.

I am persuaded that it is time for courts to take a longer view when it comes to valuing assets. After all, the parties in divorce – including the courts — are making long-term financial decisions. They should use instruments that model the long-term impacts of asset distribution.

My professional goal is to help divorcing families enter the next phase of life as two healthy, functioning units instead of one winner and one financially and psychologically battered loser. Fair settlements go a long way toward accomplishing that goal.

To the degree you believe your divorcing clients’ anxiety is rooted in the financial aspects of divorce, they may benefit from the services of a Certified Divorce Financial Analyst.

Donna Smalldon is a principal in Applied Divorce Solutions, a financial planning firm. She is a Certified Financial Planner™, a Certified Divorce Financial Analyst, a Certified Divorce Specialist, and holds an MBA. She can be reached at donna@applieddivorcesolutions.com. You may also look at www.applieddivorcesolutions.com for information about financial issues in divorce.

As a divorce lawyer in downtown Portland Oregon, I frequently get asked about the mediation requirements for family law cases in Multnomah, Clackamas, and Washington County. Some people are aware of the availability of mediation through the county, and some are not. There is confusion about what mediation is, and how it differs from a hearing or a trial. We hear lots of questions like “what is mediation? Is county mediation mandatory? Do I have to mediate if I know the other parent won’t agree? Will I have to see the other parent face to face? The following is our effort to summarize the court’s authority to require mediation, the reasons behind court mandated mediation, and provide information about county family law mediation in the tri-county area.

Mediation is a form of dispute resolution that aims to assist two or more disputants in reaching an agreement. At a trial, the parties present evidence, and a decision is imposed on the parties by the judge. In mediation, the parties themselves determine if there is an agreement, and the contents of the agreement. Many parents chose mediation with a private mediator. If, for financial or other reasons, you do not want to hire a private mediator, Multnomah, Clakamas, and Washington county make mediation available to parties involved in family law disputes. Courts want people to mediate because it weeds out cases that can be resolved without the help of a judge. Clients want mediation because it gives them control over the outcome, is confidential, reduces conflict between the parties, and is generally less expensive than litigation. Good lawyers like mediation because it provides an efficient and lower cost way to help clients resolve their disputes.

ORS 107.755 requires that each judicial district provide a mediation orientation session for all parties in cases where custody, parenting time, or visitation is in dispute, and in any other domestic relations case where mediation has been ordered. The orientation session should make parties aware of (1) what mediation is; (2) mediation options available to them; and (3) the advantages and disadvantages of each method of dispute resolution. With limited exceptions, mediation is mandatory prior to a judge hearing a case. Mediation is not appropriate for restraining order or cases involving domestic violence, and court mediators must, per statute, be trained in recognizing domestic violence, allow parties to opt out, and take steps to avoid intimidation before and during mediation. County mediation is held in private, and all persons other than the mediator and staff, parties, counsel and children of the parties shall be excluded. All communications, verbal or written, made in mediation proceedings shall be confidential, and not subject to examination in court.

Multnomah County:The court’s rules about mediation are located in SLR 8.046. Multnomah county is a mandatory mediation county for family law cases. If you don ‘t mediate or get permission to get out of mediation, you won’t get time with a judge. No temporary hearing or trial regarding custody or parenting time will be set unless an Order for mediation has been obtained, an Order Waiving Mediation has been entered, or the parties have attended mediation since the filing of the Petition. Modification motions will not be heard without compliance with the mediation requirement. The Multnomah County Family Court Services website provides that mediation is available for custody and visitation issues. The service is supported by filing fees and is free to the participants. For more information or to set an appointment call Family Court Services at 503.988.3189.
Washington County: Washington County has mandatory mediation for Any action filed in the court involving a controversy over custody or parenting time of minor children. If the parties agree, the mediator can address issues other than children, such as property and support. If there is a disagreement concerning custody or parenting time at any stage of a domestic relations proceeding, the parties must mediate. Parties must complete two sessions of Kids Turn, the mandatory parenting class prior to mediating. Parties may independently select a private mediator. Mediation is confidential, and free. The Washington County Conciliation Services website provides information on mediation services in Washington County. Mediation can be scheduled by court order, or by calling Conciliation Services at : (503) 846-3428.
Clackamas County:Clackamas County is a voluntary mediation county. There is no SLR mandating mediation. Parents can access free mediation through the county, but are not required to do so in most cases unless specifically ordered to by a judge. The Clackamas County Family Court Services website provides information about accessing mediation in Clackamas County. Most types of family law filings qualify for one or two free mediation sessions. Mediation sessions beyond the two free sessions are charged at $80 per hour. Mediation can be scheduled by calling Family Court Services at 503-655-8415.