After over twenty years of divorce litigation we came to a troubling conclusion: in most cases litigation is not good for families. It wastes money, promotes conflict, and often takes years to conclude. Sometimes litigation is necessary, such as when one or both parties are unable or unwilling to seek a reasonable compromise, but we believe most people can and will reach a reasonable solution when they are given an opportunity to do so. We developed the Informed Divorce Resolution process (IDR) to provide that opportunity to those that want it.
There are many reasons why divorce is ill-suited to litigation. The law of divorce requires an equitable (i.e., a fair) division of the marital estate. Think of the estate as a pie that must be divided between the spouses. It may be that a fair division is 60/40 in one case and 50/50 in another, but either way the pie remains the same. In most cases, some part of the pie will need to go to various professionals, such as appraisers, accountants and, of course, attorneys. Even when litigation is relatively straightforward it still requires substantial attorney time that may have little to do with moving the divorce ball forward. Add to that the problematic fact that many attorneys are more focused on winning issues than on resolving them and you end up with a lot less pie to divide between the spouses.
Litigation doesn’t just result in a shrinking pie, it promotes bitterness and animosity. Even when there are no children involved, the goal of divorce should be to end the marriage with the least possible amount of hard feelings. In fact, our goal is to have people walk away from their divorce with a sense of mutual respect. Litigation rarely results in such an outcome for the simple reason that it is a model based on winning and losing, not on cooperatively working towards a reasonable outcome.
Bitterness and animosity are bad enough when it involves only two adult spouses but add children and the problem is something altogether different. Even when parents try to shelter children from the conflict of litigation, it rarely works. And when children are dragged into the litigation through custody fights the effect is devastating and may result in lifelong damage. There is no serious dissent among the scientists to examine this question – custody fights are harmful to children, period. If that were not bad enough, in what other situation would one willingly hand over the authority to make decisions regarding one’s children to a judge who is a stranger. And although that stranger might be wise and well-meaning that does not change the fact that s/he does not know you and s/he knows your children even less.
Some people can resolve their divorces without the need for any professionals including attorneys. In fact, the Alaska Court System has done an excellent job providing the public with self-help materials. In many cases, however, dividing a marital estate and finalizing a divorce can be a complex and daunting process. Issues such as the valuation of marital assets, the division of pensions, and determining what is and what is not marital property present a variety of complicated legal and technical issues. We believe that people who are faced with such a situation do not necessarily need litigation. What they need most is information. The IDR process is designed to efficiently provide that information to both spouses so that they can reach an informed settlement.
The IDR Process
IDR begins with an intake meeting in which we will provide an overview of the process and answer any questions you might have so that you can determine if IDR is right for you.
If you decide to retain us, we will assist you in gathering all of the information necessary to determine what assets are part of the marital estate as well as the parties’ relative financial circumstances. This is the same information that parties are required to produce in litigation. A critical component of the IDR process is that both parties must be committed to transparency. Evasion, secrecy, or advantage seeking has no place in the process.
Once we have gathered all of the relevant financial information, we will generate a spreadsheet that identifies all marital and potential marital assets. We will also develop a plan to arrive at fair valuations of this property.
In the next part of the process we will provide you with detailed information regarding the law applicable to your divorce. We will tell you where the law is clear and unambiguous as well as when we believe that the law is unsettled or the facts in your case point to a range of possible outcomes. In such cases, we will provide our best analysis as to the likely range of outcomes if you were to attempt to resolve the matter through litigation. What is critical to this process is that both parties will be provided the same information. In most cases we will communicate with both parties at the same time, but even if we have separate conversations with the parties there are no secrets. All relevant information is shared with both parties always.
Mediation begins when both parties have a complete understanding of the facts and the law. Our mediation process differs from most divorce mediations in a few important ways. In our years of practice, we have seen many situations in which parties engaged in mediation either without any representation or with only one party represented. In a disturbing number of those cases, the parties have reached a final agreement that is significantly less favorable to one party than would have resulted through litigation. This occurs because most mediators believe that it is not their role to tell one or the other party what the law is. Instead they see their role as simply helping the parties to reach an agreement. The problem with these situations is not so much that the final agreement diverged from what would have resulted had the matter been litigated. The problem is that the “losing” party was unaware of this fact. IDR does not allow for such a result, because we will frankly inform both parties if we believe that an offer is outside a reasonable range of litigation outcomes.
The notion of “reasonableness” marks another important element of our approach to mediation. We define reasonableness not in terms of subjective notions of right and wrong. Rather, we define reasonableness in objective terms – what is the likely outcome if a case were to be litigated through the courts. If, after careful analysis we believe that there is a range of possible outcomes, then a “reasonable” outcome is one that falls somewhere within that range.
Among the many benefits of this approach is that it removes emotion from what is an economic problem – the division of a marital estate. This is not to say that it is wrong to feel emotions when going through a divorce. Only that by allowing emotion to dictate how one approaches the legal act of divorce leads to two highly negative outcomes: first, it promotes bitterness and animosity, because the parties are focused on who is right and wrong rather than what is a reasonable outcome based on the law; second, it wastes money. Part of the reason litigation is expensive is simply because it is time intensive even in the best of circumstances. But adding emotion to the mix is like pouring gasoline on a fire. Our goal, therefore, is not to judge parties for feeling angry or hurt or sad when going through a divorce, but to encourage parties to separate those feelings as much as possible from the resolution process.
For parties with children we will assist you to reach a child-centered custody agreement. We will encourage parties to rely on the best, most up to date research regarding children and divorce.
If the parties have reached a final agreement, we will then draft all of the documents necessary to execute your agreement. This includes all documents needed to be filed with the court; the forms needed to divide pensions; and appropriate deeds transferring real property. We will, as appropriate, either file the documents for you or will provide you with detailed instructions regarding how to do so yourself. At the end of the process you will not only have a complete resolution of all matters relating to your divorce at a fraction of the cost of litigation, you will have maintained your dignity and decency in the most trying of circumstances.