A presentation by

Just Mediation, LLC

“Helping People Tackle Problems
Instead of Each Other”

©2010 by Just Mediation, LLC, for more information: www.xanskinner.com 803-414-0185

 What are my options?
And how do I choose?

Important Disclaimer: The contents of this slideshow represent the opinion of the author in
general circumstances. This is not legal advice for your situation and does not create an attorney
client or mediator client relationship. While it is hoped that this information will help you in
ascertaining your general options, divorce is a serious legal action. Decisions regarding divorce
should only be made after consultation with an attorney in your jurisdiction, not based on material
you read or hear somewhere. Discuss these ideas with your lawyer.

©2010 by Just Mediation, LLC, for more information: www.xanskinner.com 803-414-0185

 FAIR
• Need to protect both spouses and children, now and in the future
• Need to embrace values and unique circumstances of the individual family

 COMPREHENSIVE
• Need to provide workable roadmap for present and future needs
• Need to provide closure and finality

 COST EFFECTIVE
• Need for efficient, streamlined process
• Need to ensure that optimum use has been made of services engaged

 OTHER GOALS
• Protect privacy
• Support spouses and children through the divorce transition
• Provide a more positive framework for future dealings

©2010 by Just Mediation, LLC, for more information: www.xanskinner.com 803-414-0185

DIVORCE IS A SERIOUS LEGAL MATTER!

 Legal rights need to be protected

 Divorce has long term consequences

 Penny Wise can be Pound Foolish

HOW CAN I KNOW WHAT

LEVEL OF PROTECTION I NEED?

©2010 by Just Mediation, LLC, for more information: www.xanskinner.com 803-414-0185

A DIVORCE SOLUTION IDEALLY WILL BE
 FAIR TO BOTH PARTIES

 REFLECTIVE OF FAMILY’S INDIVIDUAL NEEDS, CIRCUMSTANCES, AND

VALUES

 PROVIDE FINALITY (COMPREHENSIVE, ENFORCEABLE)

 WORKABLE

 COST EFFECTIVE

©2010 by Just Mediation, LLC, for more information: www.xanskinner.com 803-414-0185

 Most divorce cases will be settled through
negotiation, using either mediators or attorneys!

The issue is not whether, but when,

negotiation or mediation will occur.

The crucial questions are: “How much assistance

do I need from attorneys and the judicial process
for this life changing event?” and

“Do I settle my case before, or after, legal procedures have been

set in motion and with, or without, attorney guidance?”

©2010 by Just Mediation, LLC, for more information: www.xanskinner.com 803-414-0185

 Most divorces are
mediated • Attorneys direct the show
eventually. The • Engage in Discovery
(interrogatories, requests
question is not LITIGATED for admission,
whether, but when DIVORCE depositions)
• Litigation attorneys
to mediate. generally do not buy in to
mediation

• Focus is on legal rights

• Settle sometime prior to
TWO court
ATTORNEY • Attorneys direct
DIVORCE process, negotiate, and
decide if and when to
call in a mediator

• Agree to fairness
• Agree to full disclosure
MEDIATOR • Use unbundled legal
FACILITATED services to assist parties
DIVORCE • Parties are in control of
settlement process

©2010 by Just Mediation, LLC, for more information: www.xanskinner.com 803-414-0185

 Some cases require much more
assistance than others with either legal
advice, judicial process, or both

 How can you know in advance how much

assistance you will need from the court
system?

©2010 by Just Mediation, LLC, for more information: www.xanskinner.com 803-414-0185

 Need for assistance from
Power Balanced / Umbalanced

judicial process depends Bullying, as

manifested by
largely on balance of power
•withholding of
information

•threats

•demands out of
proportion to
need

0 1 2 3 4 5

©2010 by Just Mediation, LLC, for more information: www.xanskinner.com 803-414-0185

 Need for advice from
Do you have the
attorney depends on information you need
degree of awareness of to make an informed
personal values and law choice about your
divorce settlement?

•Do you know what

you want?
•Are you aware of
what you would be
entitled to?
•What more
information do you
need to make a
0 2 4 6 sound decision?

©2010 by Just Mediation, LLC, for more information: www.xanskinner.com 803-414-0185

 They’re not Both sides
Power trying to take understand
advantage, but needs and
balanced I don’t know rights, both are
my rights or committed to
needs fairness

Don’t know my Know my rights

rights or needs or needs, but
and other side the other side
is trying to is bullying or
Power exploit me threatening me
unbalanced

Unaware of options Aware of options

©2010 by Just Mediation, LLC, for more information: www.xanskinner.com 803-414-0185

 • COLLABORATIVE • MEDIATED DIVORCE
DIVORCE • Mediator can
• Parties need guidance empower self aware,
from attorneys but do equal parties to forge
not need judicial their own agreement
process
Even power
balance but High
parties awareness as
unaware of well as good
rights power balance

Power
High
unbalanced
awareness but
and also
power is
parties lack
unbalanced
information
• LITIGATED DIVORCE • LITIGATED DIVORCE
WITH OR WITHOUT WITH SETTLEMENT
SETTLEMENT • Need power of judicial
• Need attorneys and process to balance
judicial process scales of justice

©2010 by Just Mediation, LLC, for more information: www.xanskinner.com 803-414-0185

If your relationship is in either of
the lower of the two descriptions in
this triangle, you should not
attempt to negotiate your divorce
without the help of an attorney.
Both spouses are honest, candid and willing to
When power is not balanced in a make full disclosure, committed to fairness in
the process and result, want the best for the
relationship, the force of the law is other person (but fairness for themselves).
necessary to protect the rights of
the less empowered spouse.

There may be some degree of distrust of other

The further down on the triangle
your relationship is, the more
intervention and assistance you will
need from the court system to
ensure fairness of result.
spouse, desire to withhold information or
suspect spouse is withholding information.
One spouse is secretive or hoards information, is
manipulative, physically or emotionally abusive,
actively attempts to dis-empower other spouse
and prevent equal access to resources or
information

©2010 by Just Mediation, LLC, for more information: www.xanskinner.com 803-414-0185

 If you feel you are in the bottom
tier on this triangle, then you need
the services of an attorney and
judicial process to ensure that
power is balanced during your Both spouses are honest, candid and willing to
divorce negotiations. make full disclosure, committed to fairness in
the process and result, want the best for the
other person (but fairness for themselves).
This is not to say that your divorce
cannot be mediated. Rather, your
attorney will utilize legal tools
such as financial discovery, to
balance access to information and There may be some degree of distrust of other
increase confidence and ability to spouse, desire to withhold information or
suspect spouse is withholding information.
negotiate.

Most divorce cases that go

through the court system are, -One spouse is secretive or hoards information,
eventually, settled through is manipulative, physically or emotionally
abusive, actively attempts to dis-empower other
mediation, but only after full spouse and prevent equal access to resources or
discovery and financial disclosure information
has been completed.

©2010 by Just Mediation, LLC, for more information: www.xanskinner.com 803-414-0185

If you are in the middle tier of this
triangle, judicial process may be
needed, but perhaps can be
avoided if both spouses commit to Both spouses are honest, candid and willing to
and participate in full disclosure . make full disclosure, committed to fairness in
the process and result, want the best for the
other person (but fairness for themselves).
The assistance of an attorney is
helpful in cases falling in the
middle, to ask the hard questions
and pursue full disclosure.
There may be some degree of distrust of other
Collaborative Divorce is the best spouse, desire to withhold information or
suspect spouse is withholding information.
option for cases where power is
balanced and both spouses are
committed to fairness, but they’re
not quite sure what is fair, when One spouse is secretive or hoards information, is
spouses want to have attorneys manipulative, physically or emotionally abusive,
actively attempts to dis-empower other spouse
negotiate on their behalf. . and prevent equal access to resources or
information
.

©2010 by Just Mediation, LLC, for more information: www.xanskinner.com 803-414-0185

 If you and your spouse are both
willing to make full disclosure, if
you both seek to be fair, and you
want to do what is best for the Both spouses are honest, candid and willing to
family regardless of what a court make full disclosure, committed to fairness in
of law might order, then mediated the process and result, want the best for the
other person (but fairness for themselves).
divorce may be a good option for
you.

Either or both spouses may

consult an attorney at any stage There may be some degree of distrust of other
and involve the attorney in spouse, desire to withhold information or
suspect spouse is withholding information.
negotiations. And, an attorney
may be utilized to formalize the
divorce agreement into a final
divorce decree. One spouse is secretive or hoards information, is
manipulative, physically or emotionally abusive,
actively attempts to disempower other spouse
Financial, counseling, and other and prevent equal access to resources or
experts are utilized as needed to information
assist the family in making
adjustments and reaching
agreements.

©2010 by Just Mediation, LLC, for more information: www.xanskinner.com 803-414-0185

 What are your specific options?

©2010 by Just Mediation, LLC, for more information: www.xanskinner.com 803-414-0185

 LITIGATED DIVORCE : two lawyers, court filings, Discovery, expert
witnesses for each, hearings, judicial rulings

 COLLABORATIVE DIVORCE: two lawyers, experts, sharing of

information and experts, all settled out of court

 MEDIATOR ASSISTED DIVORCE: unbundled legal services, sharing

of information and experts, all settled out of court

 THE ORIGINAL COST-CUTTER (Just one lawyer): one lawyer, no

financial disclosure, no experts, settled out of court

 PURELY DO-IT-YOURSELF, WITHOUT ASSISTANCE: no lawyers, no

financial disclosure, no experts, settled out of court

©2010 by Just Mediation, LLC, for more information: www.xanskinner.com 803-414-0185

 A FULLY LITIGATED, ADVERSARIAL DIVORCE
WITH TEMPORARY AND FINAL COURT HEARINGS
 Parties engage in court ordered Discovery, including Interrogatories,
Requests for Admission, and Depositions
 Private investigators and financial experts are utilized,
deposed, and testify
 A Guardian Ad Litem is often utilized to investigate and testify concerning
what is generically labeled “child custody”
 Temporary and Final Court Hearings are held
 The court calls the shots and makes the decisions
 Attorneys give clients advice, and operate within the analytical framework
of positions that are largely determined by what a court would order
 Cost: $15,000 - $40,000 per side

©2010 by Just Mediation, LLC, for more information: www.xanskinner.com 803-414-0185

 FULLY LITIGATED, ADVERSARIAL PROCESS …
THAT SETTLES AHEAD OF COURT DATE
 Parties engage in court ordered Discovery, including Interrogatories,
Requests for Admission, and Depositions
Private investigators may be utilized and deposed
 Financial experts are utilized and deposed
 A Guardian Ad Litem is often utilized to investigate and report
 Temporary hearing is held, with terms of order decreed by judge
 Whatever is ordered in the temporary hearing becomes the status quo
 The court calls the shots and makes the decisions until …
 Evaluative style mediation occurs just prior to final hearing is used to
generate attorney / judicially-oriented settlement options
 Cost: $10,000 - $20,000 per side

©2010 by Just Mediation, LLC, for more information: www.xanskinner.com 803-414-0185

 COLLABORATIVE DIVORCE:
AN ATTORNEY-DIRECTED PROCESS
 Parties each retain their own, collaboratively trained attorney
 Parties agree to principles of fairness and full disclosure
 The parties agree to share and take advantage of expertise of subject
matter experts, such as accountants and child specialists
 The attorneys may recommend individual helpers such as divorce
coaches or vocational rehabilitation experts
 The parties, and all professionals, agree to settle the case out of court
 Attorneys direct the process and negotiate on behalf of clients
 Average cost: $5,000 - $10,000 per side, depending on services needed

©2010 by Just Mediation, LLC, for more information: www.xanskinner.com 803-414-0185

 MEDIATOR ASSISTED DIVORCE AGREEMENT
UTILIZING UNBUNDLED LEGAL SERVICES

 Parties commit to principles of fairness and agree to full disclosure

 A transformative style mediator assists the parties in understanding their
conflict better, in developing processes for resolving conflict, and in
reaching agreement that will become their divorce decree
 Experts are engaged as needed to assist parties in reaching fair,
comprehensive agreements covering every aspect of their divorce:
financial and tax experts, child psychologists, individual therapists,
vocational experts, and attorneys to whatever extent they are needed

 Cost: $500 - $4,500 per side, depending on services needed

©2010 by Just Mediation, LLC, for more information: www.xanskinner.com 803-414-0185

 THE ORIGINAL COST CUTTER:
JUST ONE LAWYER
 The parties agree between themselves on terms of settlement and
engage an attorney just to draft the agreement
 The attorney can only represent one side. The non-hiring spouse is
unrepresented or engages a different attorney on an hourly basis to
review the settlement papers
 There is no mechanism for disclosure or discovery of financial assets
 Outside experts are not utilized for help in formulating financial or
parenting plans or for adjustment and re-employment issues
 If talks break down, divorce becomes contested and both sides must hire
lawyers
 Cost: $500 - $3,000, unless the process falls apart or serious errors occur

©2010 by Just Mediation, LLC, for more information: www.xanskinner.com 803-414-0185

 DO-IT-YOURSELF DIVORCE

 Parties reach agreement by themselves

 Parties draft their own agreement

 Parties file their own court papers, and appear in court pro se

 Parties may receive advice from an attorney on an hourly basis

 Cost: about $150 - $500 per side

(depending on legal services hired,
and unless serious mistakes are made)

©2010 by Just Mediation, LLC, for more information: www.xanskinner.com 803-414-0185

 Fairness
 Custom Fit
 Comprehensive
 Practical
 Cost Effective

©2010 by Just Mediation, LLC, for more information:

www.xanskinner.com 803-414-0185
 LITIGATION COLLABORATIVE UNREPRESENTED MEDIATION
In theory is fair Fairness is almost Fairness is at serious Fairness is present,
because decisions guaranteed, risk, because there but only if both
are made after full because there is full is no commitment to spouses are
hearing on facts, disclosure, fairness, no committed to
each party is examination of facts provision for fairness and full
represented by by financial and disclosure, and disclosure AND if
counsel, and the other experts, and attorney hired by power is balanced in
court is neutral. In each side is just one party owes relationship AND
practice, litigation is represented by an a duty of zealous both parties have
fair only if both independent advocacy on behalf resources and
sides have relative advocate who gives of that client awareness to know
balance of resources evaluative advice what they want or
what they are
entitled to

©2010 by Just Mediation, LLC, for more information: www.xanskinner.com 803-414-0185

 LITIGATION COLLABORATIVE UNREPRESENTED MEDIATION
Solution ordered by Solution can be Although parties Solutions can be
judge will take into custom tailored and may be quite custom tailored and
account special may utilize expertise sophisticated, more may utilize expertise
needs and of professionals. often than not the of professionals.
circumstances, but Because process is parties will not have Solutions hopefully
will be limited by typically directed by knowledge of full will be tailored to
legal remedies and attorneys, solutions range of options that meet agreed needs
whatever is typically may vary according are available of parties
ordered by courts in to degree to which
those circumstances attorneys impose
legal remedies vs.
empower clients to
be creative

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 LITIGATION COLLABORATIVE UNREPRESENTED MEDIATION
Judges are experts Collaborative Most parties Quality of a
in divorce and do practitioners are choosing this option mediated divorce
order experts & will draft either do not have a agreement depends
comprehensive a comprehensive need for, or are not upon drafting skill of
solutions. However, agreement that will aware of their need mediator. Securing
items can be cover future for, a comprehensive review by
overlooked, and contingencies. divorce agreement independent
contingencies are Unlike “winning” attorneys provides
not planned for (e.g. parties in litigation, feedback and
parties will have to collab attorneys will quality.
return to court to revise agreements
modify support until they reflect the
orders if true intention of
circumstances parties
change)

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 LITIGATION COLLABORATIVE UNREPRESENTED MEDIATION
While court orders The practicality of Unrepresented The practicality of
may not be custom agreements arrived litigants are likely to agreements arrived
fit, the advantage of at through overlook potential at through mediation
standard remedies is collaborative pitfalls in their depends upon the
that enforcement is divorce is likely to agreements skill of the mediator
through well be well thought out, and the integrity of
established by virtue of the legal the process. When
procedures and expert-oriented experts have been
process through utilized to suggest
which the remedies and test
agreement is made the agreement,
likely to be practical

©2010 by Just Mediation, LLC, for more information: www.xanskinner.com 803-414-0185

 LITIGATION COLLABORATIVE UNREPRESENTED MEDIATION
Because it involves Although This is the least Mediation with
two entire teams of collaborative utilizes expensive option, involvement of
professionals (his two attorneys, most and also carries the experts to guide
and hers), escalates other professional greatest risk of a important decisions,
conflict through fees are shared, and poor result in a and assuming both
adversarial expensive major life transition, parties are
proceedings, and adversarial setting the stage for committed to
utilizes time proceedings are years of bitterness fairness and full
consuming avoided altogether and regret, if not disclosure, is cost
Discovery and (no Depositions, no actual hardship effective. Without
hearings, litigation is hearings, no such guidance,
the most expensive Interrogatories, etc.) mediation carries
option Much less expensive the same risks as
unrepresented
divorce.

©2010 by Just Mediation, LLC, for more information: www.xanskinner.com 803-414-0185

1. LITIGATED DIVORCE

2. COLLABORATIVE DIVORCE: Divorce negotiation directed by

attorneys and assisted by neutral experts, with an (enforceable)
agreement not to go to court

3. MEDIATOR ASSISTED DIVORCE UTILIZING UNBUNDLED LEGAL

SERVICES

4. THE ORIGINAL COST-CUTTER: Just one lawyer

5. PURELY DO-IT-YOURSELF, WITHOUT ASSISTANCE

©2010 by Just Mediation, LLC, for more information: www.xanskinner.com 803-414-0185

 Getting all parties to the negotiating table is the first,
and sometimes the most challenging, task for the
mediator or negotiator

 The same approaches to solving problems will not

work. You know this, because you’ve already tried the
tools in your own tool kit. If you got along, you wouldn’t
need a mediator or negotiator.

 If you propose a collaborative divorce or mediated

divorce, the mediator or attorney will be happy to
contact your spouse and send information
©2010 by Just Mediation, LLC, for more information: www.xanskinner.com 803-414-0185
 WHAT ARE MY  Divorce is very serious, with long term
consequences for you and every member of
DIVORCE OPTIONS? your family

IN CONCLUSION:  The same solution does not fit everyone

 Choose carefully depending on your
circumstances, paying special heed to your
need for directive advice and your need for
help balancing power
 In collaborative or mediated cases, your
attorney or mediator can help with
convening
 For more information about mediation or
A presentation by conflict transformation in general, please
see www .xanskinner.com
Just Mediation, LLC
“Helping People Tackle Problems  Thank you for your time!
Instead of Each Other”

©2010 by Just Mediation, LLC, for more information: www.xanskinner.com 803-414-0185