Once the decision has been made to end a marriage, the most important question to be answered is “how” the parties will go about it. In every instance, the answer to “how” involves two components: what form will the negotiations take; and, what happens if the negotiation ends in a dispute or impasse. DivorceChoice® provides you with the flexibility to choose from among all of your options in creating a process that suits you. You select, both, the Negotiating Model and the Dispute Resolution Mechanism with which you are most comfortable. The choices for the Negotiating Model include: four-way meetings with the parties and their counsel (either required or as requested by either party); mediation; facilitation; or, early neutral evaluation. The Dispute Resolution Mechanism options include: arbitration; a private judge; cooperative litigation; and parenting coordination. You are free to “stack” your choices. For example, the Negotiating Model can specify four-way meetings as requested, followed by mediation, before proceeding to the Dispute Resolution Mechanism. Once the choices have been made as to the Negotiation Model and Dispute Resolution Mechanism, these elements are set forth in a Participation Agreement signed by you and your counsel, and by your spouse and his or her counsel. The Participation Agreement is a binding and enforceable agreement. To the extent that the parties select arbitration as the way in which any dispute will ultimately be resolved, DivorceChoice® is, therefore, the only process that assures that you will not become involved in prolonged court litigation that is unnecessarily costly to the family, both economically and emotionally.
DivorceChoice® also allows you to retain your attorney if you reach an impasse and move to the chosen Dispute Resolution Mechanism, even if it is litigation. Skirbunt & Skirbunt LLC has been a pioneer in advancing and developing choices alternative to litigation for clients. Jim Skirbunt created and developed DivorceChoice®, the most flexible, comprehensive, and customizable method of terminating a marriage. DivorceChoice® is a model suited to fit the needs of most families. If you would like to utilize DivorceChoice®, call us. We can help.
DivorceChoice® is a procedure using a participation agreement designed by the parties, with the assistance of lawyers, that includes both a negotiation and dispute resolution mechanism with the goal of reaching an agreement that satisfies the interests of the parties. While the process begins with negotiation, the parties may retain their lawyers in any dispute resolution mechanism, including litigation.
The following describes the typical steps in DivorceChoice®. It is a flexible process so that parties and lawyers are able to completely tailor the divorce process it to the parties’ needs in each individual case. DivorceChoice® is client-choice driven.®
DivorceChoice® begins in the initial intake session.* At this time the attorney explains to the prospective client that, after the decision to terminate the marriage has been made, the most important decision the client must make is “how” he or she will proceed from that first intake session to the point where the marriage is terminated. In order to make this choice, the attorney informs the client about the Negotiation Model and Dispute Resolution Mechanism options available to the client, including litigation. The attorney provides the client with an understanding of the common elements and distinguishing characteristics of each process.
*DivorceChoice® may also be undertaken after the commencement of litigation. In such an event, Step 1 will still occur during the intake interview, but, upon retaining Skirbunt & Skirbunt LLC, your attorneys will typically reach out to opposing counsel to explore using the DivorceChoice® process. If the DivorceChoice® process is chosen, the parties will request a joint stay of proceedings from the court.
After each of the parties has been informed with respect to process options, the parties design their process by selecting a Negotiation Model and a Dispute Resolution Mechanism from the available choices. Some of the major options can be found here.
The design of the process preferably is done at a four-way meeting. Process design should be the only topic of discussion at that initial meeting. The attorneys avoid expressing a preference for any one Negotiation Model or Dispute Resolution Mechanism, recognizing that the choice of Process belongs to the client.
After the parties have designed the Process, the attorneys prepare and circulate a Participation Agreement that reflects the commitment of the parties, and their counsel, to participate in a transparent, problem-solving approach to the issues presented. The Participation Agreement should include: The Negotiation Model and Dispute Resolution Mechanism selected by the parties; a provision for the gathering and sharing of relevant financial and other information and supporting documents; and the use of experts or related professionals, if any. The Agreement may also include a timeline for the entire Process, or for the negotiating period, at the conclusion of which the Dispute Resolution Mechanism is implemented. The attorneys jointly circulate the Participation Agreement to the parties for signature. Once the Participation Agreement has been signed, The chosen process begins.
Uncertainty creates anxiety, and the commitment to transparency is fragile in an environment short on trust. As a result, the situation of the parties should be stabilized. Counsel for each of the parties should promptly identify short-term concerns of his or her client and how they may be satisfactorily addressed. Flexibility on both sides is required in order to build an environment of trust and to facilitate the “look forward,” rather than the rehashing of historic behavior. If the parties are able to agree upon interim commitments, and adhere to them, it will increase the likelihood of success in the final negotiation.
The parties have committed to a transparent, problem-solving approach to their issues. In order to accomplish this goal, each side must have identical information from which to identify concerns and to formulate settlement options. Each side, with the assistance of counsel, should cooperate in promptly providing all relevant information and documents in their respective possession. The attorneys should prepare “Financial Bibles” consisting of an index of pertinent documents and a binder of documents correlating to the index. Each of the parties and counsel should have an identical index and binder. The “Financial Bible” should be updated, as necessary, at each meeting.
If an expert is required, the parties, with the assistance of counsel should jointly engage a single expert to determine the particular issues. These issues may include custody/parenting time, business valuation and pension valuation, among others. Either party may engage a second expert to appropriately raise concerns regarding the opinion of the joint expert. After reviewing the second expert’s concerns, the joint expert may, or may not, revise the original opinion given. The report and testimony of the joint expert, and any second expert, is admissible in any Dispute Resolution Mechanism, should the negotiation result in impasse.
The parties, with the assistance of counsel, may involve a financial planner, communications coach, parenting coordinator, or other related professional to assist in the negotiation of an issue. Any related professional added to the problem-solving exercise should be instructed in the DivorceChoice® process and shall be provided with a copy of the Participation Agreement signed by the parties.
In order to effectively negotiate as problem solvers, the attorneys must first identify and understand the concerns of their own client AND the concerns of the other party. Whether in a face-to-face meeting with clients or in a meeting of counsel, only, the concerns of each client should be clearly identified before the commencement of any negotiation. After the concerns of the parties are identified and understood, attorneys for the parties participate in creating options for settlement. This participation will include the background and experience of the attorneys in finding customized solutions for clients. Indeed, the best lawyering may embrace solutions that the court would not even consider, if the issue were determined by trial.
If all issues presented are resolved by agreement, the parties’ understanding shall be memorialized in writing by the attorneys as a Separation and Property Settlement Agreement (also known as a Separation Agreement) and a Shared Parenting Plan, if applicable. The Separation Agreement and Shared Parenting Plan should clearly incorporate all the terms agreed upon which the parties have agreed. After execution by the parties, the Agreement and Plan will be presented to the court for ultimate disposition of the issues presented, along with a Judgment Entry of Divorce (or Dissolution).
If the parties, with the assistance of counsel, are unable to resolve all issues through a negotiation, the unresolved issues, or the matter in its entirety, shall move to the Dispute Resolution Mechanism selected by the parties. If a timeline for negotiation has been established, it should be adhered to unless modified, in writing, by the parties. Prior to the end of the timeline for negotiation, the decision to transition to the Dispute Resolution Mechanism phase may be made by either party or the parties jointly. If one party makes the decision to initiate the Dispute Resolution Mechanism, such choice is preemptive, and the negotiation is concluded. Initiation of the Dispute Resolution Mechanism does not alter the commitment of the parties and their counsel to the DivorceChoice® Participation Agreement. Participation in Arbitration, Private Judging, Cooperative Litigation, or Parenting Coordination requires adherence to the tenets of the DivorceChoice® Participation Agreement.