We provide mediation services for parties who wish to settle their cases and get on with their lives. If your goal is to preserve your relationships, finances, and sanity, this process may be for you. If you want revenge or to make the other party hurt, we cannot help.
As the name Divorce Without Duress suggests, we believe the divorce process can be handled without duress. Webster’s defines duress as “force or threats meant to make someone do something.” Duress is the ammunition that warring litigants use in every lawsuit. Each party’s posture in an adversarial suit typically communicates “If you don’t settle on my terms, it will only get worse for you.”
Please note that the name of our practice is not Divorce Without Stress. Regardless of whether you use our services or not, divorce is almost always a stressful and scary process. However, instead of engaging in an adversarial process from the start, our philosophy challenges parties to ask themselves, “Wait a minute − do you think we should lay down our arms for at least a meeting or two to see if we really need to go to war?”
For parties who do want to proceed peaceably, we offer mediation services with the goal of identifying issues and proposing resolutions from the beginning of the case so as to reach a relatively quick resolution. In turn, we have found that this process produces significantly less stress than the traditional divorce process and can save tens of thousands of dollars, if not more.
TRADITIONAL DIVORCE PROCESS
To understand the benefits of what we do, a basic understanding of the traditional divorce model is necessary. Typically, you would talk to well-intentioned friends and family members who all tell you you need a really tough lawyer. After you are satisfied you have found one, the lawyer will tell you how much money will be needed to get started on the case. You will ask, “How much is this going to cost me in total?” However, the lawyer will let you know that there is no way to predict the cost because each case is different. The lawyer is right in this regard because lawsuits are unpredictable.
Once you pay the lawyer the initial fee advance, he or she will file a petition for divorce and will then start sending requests to the other side for every document that you or your spouse ever received from a bank, brokerage firm, accountant, employer, employee, creditor, debtor, coworker, friend, family member, etc. This process is known as the written discovery process.
After receiving a mountain of paper, the lawyer and staff will review every page for hours to glean every factoid contained within. Once everything is reviewed and analyzed, even more time will then be spent organizing the mountain of paper into countless indexed folders. This will all be done at significant expense and you will think the discovery process is an incredible waste of money. Your lawyer will maintain that this has to be done in the name of due diligence. Again, this is not a criticism of the lawyer. To prepare for trial, the lawyer has a duty to make sure that no stone goes unturned.
Incidentally, your spouse’s lawyer will send you the exact same discovery requests to you, and the amount of fees spent on written discovery by your community estate will double.
In addition to written discovery, either side may want to take depositions of the opposing party or other witnesses. A deposition consists of lawyers asking witnesses questions under oath in the presence of a court reporter who records every word of every question and answer. Depositions generally serve two purposes. Depositions may be used to simply find out information from the other side or witnesses. However, just as frequently, depositions are used to find out what lies the other side is going to tell and to get the other side to commit to those lies. That way, they cannot change their lies to suit their purposes later on. This part of the discovery process is expensive, as well. Your lawyer will spend hours preparing for the deposition and appearing at the deposition. Furthermore, the court reporter taking the deposition will not be cheap. Despite the expense, depositions are often critical to trial preparation.
Besides the discovery process, there are other means to assist you accumulate ammunition for your trial. Many parties pursue experts to conduct psychological evaluations, custody evaluations, business valuations, pension valuations, real estate appraisals, and any number of other types of evaluations. These are very helpful to the court and will help you present your best case. Of course, the other side will have to hire equally competent experts to combat and neutralize your experts so that that party may put on his or her best case.
Finally, after the lawyers have conducted discovery and obtained expert reports, it is probable that you will attend mediation. Despite the money already spent on discovery and experts, the lawyers and mediator will spend the first couple of hours of the mediation framing the issues that are in dispute and catching the mediator up to speed.
Once the mediator is up to speed, you and your spouse can finally get down to the business of settling the case. In the vast majority of cases, mediation is successful and the case is settled. However, many settlement agreements are entered into to “stop the bleeding” − parties simply are beat up by the process to the point that they are ready to get on with their lives.
If the parties do not reach an agreement, you will proceed to trial, and a judge or jury will decide the terms of your divorce.
OUR PROCESS
Divorce Without Duress aims to skip straight to the get on with your life part. Our process encourages parties to cooperate with one another early in the divorce process to procure, compile, and organize the materials that will be necessary to make an informed decision. Usually, the process is conducted in three stages.
Stage 1 — We Educate Each Other
The first stage is usually handled in one meeting with the parties, but, occasionally, more than one meeting is necessary. This stage serves six distinct purposes.
- First, we educate you about how our process works.
- Second, we try to determine whether the process is right for you. Some cases simply need the adversarial system. This may be because of an extreme imbalance in relative bargaining positions between the parties. One party may have no knowledge as to the financial holdings of the parties. Also, couples with a history of violence may not be ideal candidates.
- Third, we identify and discuss issues at the heart of the case. This can include division of property, spousal support, child custody issues, child support, and any other issue that is typically associated with divorce.
- Fourth, we determine the information and documents that will be necessary to mediate the case.
- Fifth, we assign both parties homework that will assist us in conducting the mediation. This usually includes preparation of: spreadsheets and schedules related to property issues; budgets; income summaries; and synopses regarding parent-child issues. Additionally, we identify issues that might require outside help such as accountants, real estate appraisers, business valuators, or a mental health expert.
- Finally, we seek to determine whether there is a need for a temporary agreement to help carry the parties until such time that a final resolution is reached. Issues frequently included in temporary agreements include child support, spousal support, child custody/visitation, and the temporary use and possession of property.
Stage 2 — Addressing Temporary Issues & Getting Complete Picture of the Issues
The second stage has two or three purposes.
- First, in cases that require a temporary agreement, we assist the parties in negotiating a temporary agreement.
- Second, we review the homework assigned in the first meeting and ensure that we have sufficient information and documentation to understand the issues in your case.
- Finally, we identify the issues on which the parties agree or disagree.
This duration of this stage is unpredictable. Sometimes, it can be handled in one meeting. However, parties often have complex property issues that require review of voluminous records that necessitate multiple meetings. In this stage, it is sometimes determined that the parties are not comfortable settling a case without the assistance of a financial or mental health expert.
Once all the issues are framed, any necessary expert opinions have been rendered, and both parties are satisfied that they have a complete picture of the disputes to be resolved, we determine how the mediation will proceed. Some parties prefer a series of shorter mediations focused on specific issues, while others prefer to schedule a full-day mediation to resolve all issues at once. In some cases, particularly those involving children, it is determined in this session that having a psychologist present at mediation will help facilitate settlement.
Stage 3 — Mediation
The third stage is the mediation itself. Mediation is simply a settlement conference or series of settlement conferences facilitated by a mediator.
Mediation is informal and flexible. Our role as mediators is to help guide the parties toward their own resolution. At times, we may ask the parties to participate in joint sessions. At other times, we may meet in separate rooms. Throughout mediation, our job is to help the parties formulate offers and counteroffers that are reasonable in light of the facts and circumstances of the case.
If mediation is successful and the parties reach an agreement, we will reduce that agreement to writing to be signed by the parties. The agreement is binding and cannot be revoked. The terms of the agreement will become the terms of the final decree of divorce.
WHAT OUR PROCESS IS NOT
We do not offer legal representation or psychotherapy services. While we do employ an attorney-mediator and a psychologist-mediator, as as mediators, we remain neutral throughout the process to help the parties achieve an outcome that is satisfactory to both sides.
The Divorce Without Duress program is not for those seeking an uncontested divorce. If your divorce is truly uncontested and you simply want help with the legalities of the divorce process, there are many fine lawyers who can help you at reasonable cost.
Our process is not touchy-feely. We expect there to be pain, anger, and disagreements between the parties. We do not expect the parties to be best of friends. Further, mediation is not an exercise in sugar-coating things for the parties. Our mediators will provide honest assessments to assist the parties in making difficult decisions. Just because we remain neutral as mediators, that does not preclude us from expressing to a party that his or her position is unreasonable.
WHO CAN BENEFIT?
The Divorce Without Duress program is not for everyone. Our method generally requires that both parties be (a) “reasonable” (as defined below) and (b) sufficiently informed or capable of becoming sufficiently informed to make educated choices.
Reasonableness
A reasonable party for our purposes is not someone who is necessarily good, virtuous, or possessing any outstanding qualities. A reasonable party is one who has realistic expectations and is willing to enter into a settlement that may result in walking away with less than his or her best day in court after taking into consideration the risks, costs, and range of potential outcomes that could result from a trial. We have worked with some absolutely terrible people who had perfectly reasonable approaches to settlement while, conversely, some of the finest, upstanding, and decent people have refused to enter the realm of realistic expectations.
Our experience has taught us that divorces fall into one of the following four categories:
1. about 25% of the time, both parties are unreasonable;
2. about 25% of the time, our client is reasonable and the other side is unreasonable;
3. about 25% of the time, our client is unreasonable and the other side is reasonable; and
4. about 25% of the time, both parties are reasonable.
Note that in about three out of four cases, at least one party is reasonable. Similarly, in three out of four cases, at least one party is unreasonable. It takes a meeting of the minds to settle a case and, thus, it only takes one unreasonable party to veto a perfectly reasonable proposal.
It makes no difference how reasonable one party is, if the other party is not willing to discuss settlement within a range of realistic potential outcomes, the case will not settle. The Divorce Without Duress process is usually not suited for those three out of four cases in which one of the parties is unreasonable. However, even if your case falls into the 25% of cases in which both parties are reasonable, this process still may not be for you.
Informed or Capable of Becoming Informed
In the medical arena, doctors are required to give you information about a treatment, test, or procedure so that you can decide whether to undergo the treatment, test, or procedure. This process of disclosing the risks and benefits of treatment, coupled with the patient’s understanding of the disclosures, is known as informed consent. Informed consent is based on the premise that the patient has the right to make informed decisions about his or her own health and medical conditions.
At Divorce Without Duress we believe that parties to a divorce also have a right to make informed decisions about the risks and benefits of entering into a settlement agreement. Both parties should know (a) what their assets and liabilities are and (b) what those assets are worth. However, it is not uncommon for us to hear that throughout a marriage, one party has been completely in charge of all the finances, while the other party has been completely ignorant of the finances. This dynamic may work fine in an intact marriage, but to enter into a reasonable divorce settlement, the party who has historically been in the dark needs to be brought up to speed to be able to make an informed decision.
During our initial meeting, we explore the parties’ relative levels of knowledge regarding their estate and discuss ways to equalize that knowledge. We require that each party agree to fully disclose assets and liabilities before we will begin the process, and we provide tools to assist in the preparation of disclosures.
Some marital estates are concrete enough that disclosure is relatively simple. Parties may have assets that have a definitive value that can be determined by looking at documents such as bank statements, retirement account statements, and credit card statements. Those items can readily be listed on a spreadsheet or inventory and are easily understood.
Some assets have value that is more nebulous and uncertain. Real estate, closely held businesses, and pensions are prime examples of this. If one party is going to be awarded one of these types of assets to the exclusion of the other party, it is necessary to know their value in order to adequately compensate the other party with other community assets. If this is an issue, usually the easiest solution is to enlist the assistance of a neutral expert to provide a valuation. On the other hand, if an asset of uncertain value can be divided between the parties, or if the asset can be sold with the proceeds being divided, agreeing upon the absolute value of the asset becomes less important. The agreement can simply provide that each party is awarded a percentage of the assets or proceeds.
Now, you may be thinking to yourself, “This all sounds well and good, but how do I know that my spouse will come clean and disclose everything?” The short answer is you may never know. However, this is equally true regardless of whether you use the Divorce Without Duress method or vigorously pursue formal discovery pursuant to the rules of procedure in a lawsuit. From our point of view, the answer to the question depends on why you ask the question in the first place. If you are asking because you believe your spouse is untrustworthy and fundamentally dishonest, this process is not for you. On the other hand, if you believe your spouse is decent and honest, but you want to take every precaution to verify the accuracy of his or her disclosures, we can propose the use of a neutral forensic accountant to assist with the preparation of an inventory and valuation of your estate.
What Next?
If you believe that you and your spouse are candidates for our process, we invite you to contact us to schedule your initial evaluation. You may click the icon below to schedule a free consultation.