Page 2 - Alternative Dispute Resolution

S2 | MONDAY, MARCH 20, 2017 | Alternative Dispute Resolution
| NYLJ.COM
Collaborative Divorce: A Process Option Whose Time Has Come
legal system against the pain of remaining in their unhappy and oftentimes unhealthy marriages. While litigation has its place, attor- neys, litigants and members of the judiciary alike, routinely bemoan the shortcomings of this system. Most participants agree there is a glaring need for a better way. As a result, mediation and collaborative practice are experiencing increased selection by divorc- ing couples and attorneys.
Like many other societal issues, the subjec- tive circumstances of divorce matters exist on a spectrum with outliers residing on either end. On one end are the cases involving high functioning, emotionally sound individuals capable of reaching mutually beneficial resolutions independent of any formal legal proceedings. It is in these narrow cases that mediation serves as a cost effective, expe- dient and often highly successful process option. On the other end of the spectrum are the highly litigious, often emotionally unstable and psychologically impaired people. These litigants are motivated primarily by hatred and a hunger for vengeance. More often than not, they are incapable of reaching an agree- ment on even the most rudimentary issues. For these individuals, a judicial finding is the only appropriate resolution of issues.
In the middle lie the vast majority of cases possessing varying degrees of complexity and psychological functioning of the parties. It is in these cases that collaborative practice can provide a better resolution and assist in the creation of a successful and healthy bi-nuclear family. The collaborative process is a relatively young option in family law. This non-litigious option allows divorcing couples to restructure their families and define their future relationship in a positive manner that not only benefits the family, but ultimately, society as a whole.
Parties engaging in the collaborative pro- cess agree not to litigate by executing a par- ticipation agreement. Neither party waives their right to litigate, but should either party do so the attorneys are disqualified from fur- ther representation and the collaborative pro- cess ends. By taking litigation and the threat thereof off the table, the parties’ interests are aligned at the outset.
Unlike in mediation, both parties in collab- orative practice are represented by counsel. In addition, the collaborative process incor-
KIM CIESINSKI is a partner at Schwartz & Ciesinski in Garden City, focusing on collaborative divorce and mediation.
BY KIM CIESINSKI
The legal system, by its very nature, is designed to produce a winner and a loser. In the context of divorce litiga- tion, the winner is defined as the party who walks away with “the most”—most money, most widgets and most time with the chil- dren. However, this win/lose paradigm is an
untenable fit in divorce, especially where there are children involved. When there is a perceived winner and loser, the entire family suffers emotionally and financially. The per- ceived loser can often experience anger and resentment which decreases the likelihood of compliance with court orders, and increases the incidence of post-judgement litigation. Fortunately, other solutions are taking hold. Mediation is increasingly prevalent, and now,
collaborative practice is achieving heightened interest by providing another alternative to litigation with significant benefits to both attorneys and their clients.
A growing segment of the unhappily mar- ried population is reluctant to subject them- selves to lawyers and “the system.” A palpable fear of being lost in the narrative of your own life, as told and determined by strangers, has couples weighing the destructive forces of the
S4 Proposed Rule
For NY Supreme Court May Make Arbitration Truly Confidential
BY ROBERT LEWIN
AND ANDREW S. LEWNER
S6 Making Diversity Happen in ADR: No More
Lip Service
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Inside
S7 Mediation: A Solution For Resolving
Interpersonal Conflict
BY CAROLINE ANTONACCI
S9 Preparing
For a Successful Mediation:
It’s Elementary! BY SUSAN HERNANDEZ
S10 Enforcing Foreign Arbitral Awards
Against Foreign Corporations Registered To Do Business in NY
BY HENRY WEISBURG, CHRISTOPHER RYAN AND DANIEL PURISCH
Rebecca Baker, Deputy Editor-In-Chief • Angela Turturro, Sections Editor • Rafal Pytel, Design
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