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Business owners, divorce and collaborative law.

For New Hampshire citizens who value privacy, cost-efficiency, expediency and outcome control, choosing an alternative dispute resolution mechanism is the optimal way to resolve most differences between parents and former spouses.

This is especially true for business owners in the midst of such a dispute.

In light of the shortfall of judicial officers, heating dates and resources, Circuit Court Administrative Judge Edwin Kelly has recommended that attorneys "work collaboratively with each other to settle the cases that you can either on your own or using alternative dispute resolution methods ... so that heating time can be given to others."

A wide array of alternative dispute resolution options are available to families, including mediation sessions with or without attorneys, neutral evaluation, negotiation and arbitration.

A new and rapidly expanding approach is collaborative law, which centers on each party's interests, in light of resources and realities, as opposed to wishes, entitlements and rights.

The collaborative approach encourages understanding and consideration of concerns underlying the legal issues by all parties and professionals involved.

Each party is encouraged to be open, communicate directly, propose ideas and work toward a global resolution of the dispute.

In the collaborative process, the parties and their selected professionals work as one team--the couple, two collaborative attorneys, a divorce coach and a financial professional.

The divorce coach is a mental health professional who meets with the couple for the limited duration and purpose of the collaborative case. The parties and coach discuss issues of concern, potential roadblocks, communication issues and how to move forward. The coach provides feedback to the attorneys to keep the case progressing.

This holistic approach ensures that all issues are heard and constructively resolved. If children are involved, then a child specialist may be added.

Financial specialists are often asked to help to gather relevant financial information and assist with modeling and forecasting of financial results.

The third-party specialists are shared, jointly retained and jointly paid, thereby reducing the cost to each party.

Collaborative meetings are scheduled at the convenience of the team, unlike court events. As issues or questions arise, the parties may gather information between sessions, discuss issues with the coach or review proposals with the financial specialist.

The fact-based and constructive approach taken in collaborative meetings allows the parties to express and hear concerns (especially with the help of the coach), then make decisions based on the realities confronted by each, and to construct agreements together with ideas and assistance from the entire team.

When respectfully and rationally resolving their own disputes, parties can agree to something that a court may not be inclined to order, such as a longer payment duration with a lower interest rate for a property settlement that must be paid over time, increased alimony in lieu of a greater share of property, variable parenting schedule or other terms.

In other words, the parties hold the keys to their own freedom from the dispute and, in many ways, can design the agreement as they wish.

All team participants must sign an agreement to participate in the process openly, honestly and in good faith and all involved professionals are disqualified from participation in any future litigation. This is a powerful motivating force to stay with the process once it is started.

How quickly a case can be resolved depends upon the motivation of each party. However, parties who resolve their disputes are more satisfied with the outcome and less likely to return to court for subsequent litigation of the involved issues.

The public nature, voluminous and repeated production of documents, duration, acrimony and expense of family litigation are serious concerns for business owners. The inability to control the process, location, time frame and outcome is less than desirable. Harm to personal or business reputation, release of sensitive or proprietary information or diminished performance at work during the case may result from prolonged or particularly hostile proceedings.

In this era of judicial branch budget cuts and staff reductions, the average litigated divorce takes approximately two years, from the date of the first filing to the final decree. Collaborative cases are significantly less expensive and time-consuming.

Margaret R. Kerouac, a director in the Litigation Department at the law firm of McLane, Graf, Raulerson & Middleton, can be reached at or 603-628-1330.
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Title Annotation:Dispute Resolution
Author:Kerouac, Margaret R.
Publication:New Hampshire Business Review
Geographic Code:1USA
Date:Sep 7, 2012
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