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Hoge Partners, PLLC
First Trust Centre
Suite 400 South

200 South Fifth Street
Louisville, Kentucky 40202
Fax:  (502) 583-1223
Phone:  (502) 583-2005

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Fellow of the American Academy of Matrimonial Lawyers

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Resolution Options (Mediation, Arbitration, Collaboration and Litigation)

Today, Family Law clients in Kentucky have many options in choosing how they want to resolve their domestic relations disputes.

YOUR RESOLUTION OPTIONS INCLUDE:

Litigation   |   Mediation   |   Arbitration   |   Collaboration

LITIGATION

In the old days (40 years ago), divorce clients were at the mercy of the judicial system as there were few if any options to full-blown, no-holds-barred litigation.  This method is expensive, lengthy and exhausting for everyone involved.  The litigants have relatively little control over the outcome and their attorneys must go to the ends of the earth to prove their case to the Court.

If you and your spouse cannot settle your case, it will go to trial. At trial you each tell your story to the judge through your testimony, the testimony of other witnesses, and documents called exhibits.

Trial will be expensive (both from monetary and emotional standpoints). However, it can be the only alternative to never-ending, unreasonable settlement demands or a party's refusal to negotiate in good faith. Also, trials are risky. No lawyer can guarantee the outcome of a trial because every case is different. A judge -- who may well have opinions, viewpoints and values different from your own -- will unilaterally decide how you and your spouse are going to rearrange your lives, will divide your income and assets, and will dictate when and how each of you may see your children.

Going to trial does not alway end the case.  Multiple appeals are possible (both in the trial court and in the appellate courts).  Appeals add more legal fees and expense to the divorce process and are difficult to win.

Bill Hoge has more than four decades of Family Law trial and litigation experience.  Talk to us today about representing you in divorce, post-divorce or other Family Law litigation.

"So what are my options if I don't want to go to trial?"

Over the course of the last 10 years, the evolution of Alternative Dispute Resolution ("ADR") has given us novel techniques which are collectively known as "Alternative Dispute Resolution" or "ADR".  All of them are available to help efficiently and expeditiously resolve dissolution of marriages, custody disputes, division of property, responsibility for debts, visitation and parenting issues, etc.  In all likelihood, one of these methods is right for your situation.

MEDIATION

In Jefferson Family Court, there are ten Judges, who collectively handle about 17,500 new cases per year. This figure does not include family law cases that carry over from the previous years (old cases that are brought back to life as "post-divorce" actions for changes in child support, custody, visitation, maintenance, etc.).

Do the math to divide 35,000 cases (new cases plus cases revived from past years) by ten Judges and you can see for yourself the tremendous burden the local court system is under.

Couple that caseload with the cost of protracted litigation and the emotional toll of a full-blown divorce or custody battle and you'll realize there must be a better way to end a marriage.

After you come to the realization that nobody wins in a divorce, after you understand that protecting and nurturing your children should be the primary goal, and after you consider who will most likely walk away with what and who will have to pay what, then you should be in a position to realize the potential benefits of resolving your divorce through mediation.

Bill Hoge's services as a Family Law Mediator are available to resolve even seemingly hopeless, high-conflict situations.  Have your attorney contact us to schedule mediation.

What is mediation?

Mediation is defined by the Jefferson Family Court as:

An informal process in which a neutral third party or persons called a mediator or mediators act to facilitate the resolution of a dispute between two or more parties. The process is designed to help disputing parties reach an agreement on all or part of the issues in dispute. Mediation is based on principles of communication, negotiation, facilitation, and problem-solving that emphasize the needs and interests of the participants; fairness; procedural flexibility; privacy and confidentiality; full disclosure; and self determination. Decision-making authority remains at all times with the parties, not the mediator. [Emphasis added.]

In Jefferson County, it is standard procedure for the parties to attempt mediation before a trial will be scheduled.

Why mediate our differences?

With the help of an independent third party -- the mediator -- the divorcing couple can usually determine the issues that are really important to them and negotiate arrangements that come out of their own specific needs. A mediated resolution often costs less, takes less time and is usually less painful. It is always faster.

We are not proposing that any divorce be undertaken without the aid and guidance of a competent attorney, preferably one who focuses his or her attention on Family Law matters and who spends a considerable amount of time staying up-to-date on developments in this ever-changing area of practice.

Competent, reliable, knowledgeable legal counsel is still important, even if you and your spouse opt to attempt to mediate your disputed issues.

For one thing, only your attorney can draw your attention to important matters that might have slipped by you that will require mediation or adjudication. Mediators cannot look after your best interests -- their goal is to close the case.

What are the advantages of mediation?

Research has found that it takes approximately two (2) years following a divorce to recover from the overall stress and trauma -- even longer if high conflict was involved. [See Complete Guide to Mediation: Cutting-Edge Approach to Family Law Practice by Forrest S. Mosten, published by the American Bar Association's Family Law Section.]

Poor communication between spouses is one of the most common reasons for divorce. The time to begin practicing good communication skills with your spouse is usually not when you are both in the throes of a bitter and acrimonious divorce battle.

Divorce mediators are specially trained, frequently being retired judges or family law attorneys who have committed themselves to helping people just like you resolve disputes.

Successful mediation can improve the former spouses' relationship to the level that future communication is possible when they must deal with each other regarding the children of the marriage.

Although you may divorce your spouse, you will always be connected to him or her through the children. Children are defenseless when they are caught between battling parents. Mediation can be successful in focusing the parents' attention on what should be the primary objective: the future care and well-being of the children.

So often, divorce seems to boil down to who is going to walk away with what and the children are sometimes regarded as the "spoils of war" -- something to be "awarded" to the victor. Rational parents recognize that this attitude does nothing but damage the children through the strain it puts on your relationship with your former spouse and the children's relationship with their other parent.

If the mediator is open and supportive of the parties, the process can have benefits that are not possible in litigation.

Mediation allows clients to make use of their own values, goals and priorities to "custom build" a divorce agreement, tailor-made to suit their needs and legal rights.

When is mediation not advisable?

If you are a victim of domestic violence at the hands of your spouse and your spouse's attorney suggests or the court orders mediation, be absolutely certain your attorney fully understands the abuse you have suffered.

Mediation is generally not advisable when domestic violence is or has been present, although it is sometimes successful when the parties are kept isolated from one another and the mediator works by going from room to room, visiting the respective parties and their counsel.

How does mediation work?

When the parties agree to mediate or when the court orders mediation, a neutral third party specially trained and qualified to assist in domestic relations dispute resolution will be chosen by the parties or appointed by the court.

An appointment will be scheduled for the first mediation session. You will have the option of having your attorney present during mediation, which we strongly recommend. If you feel relatively comfortable speaking up for yourself and your attorney has discussed with you the issues at stake, perhaps your attorney will only need to review your legal agreement prior to execution.

Using principles such as those expressed in the book Getting to Yes by Roger Fisher and William Ury, a mediator will set about:

  • Defining the parties' issues and setting an agenda
  • Uncovering hidden interests
  • Generating options for settlement
  • Conducting final bargaining between the parties

The mediation process is usually conducted with both parties (with or without their attorneys) being present in the same room with the mediator. In high-conflict situations, the session is conducted with the parties in separate rooms.

ARBITRATION

In arbitration, an arbitrator is empowered by the parties to make a decision on the resolution of the case, which is fully binding upon the parties, in much the same way as the Court's decision is binding upon the parties. Arbitration in Family Law is conducted by an independent third party, usually an attorney with many years of Family Law experience.

The setting for an arbitration is generally more formal than in mediation. The arbitrator will conduct the session in much the same way as a court hearing, with specific time limits for each party�s proof to be presented and their arguments made.

Unlike mediation, the parties and their counsel give the arbitrator the authority to render a binding decision, which will have the same authority and power as a court order and which will be enacted by the court through entry of the decision as an order of the court.

In arbitration, the parties do not have the power to participate in the decision-making process but, rather than endure months of delay before getting a court date, they can engage an arbitrator who will tender his decision in a much shorter period of time. A speedy date is the primary advantage of arbitration.

Bill Hoge's services as an Arbitrator are available.

 Talk to us today about how ADR can help resolve your Family Law problem.

COLLABORATIVE LAW

You have a right to be creative in solving your Family Law legal issues.

What is Collaborative Law?

"Collaborative Law" is one of several Alternative Dispute Resolution (ADR) methods enjoying increasing favor among consumers of legal services. It is significantly different than mediation or arbitration and has become enormously popular among legal services consumers and attorneys throughout the country.

In a Collaborative Family Law divorce action, the husband and wife are each represented by their own attorneys, but those two attorneys have both been trained in a new system of handling such cases by working together toward an equitable solution. In addition, both parties and their respective attorneys must sign a Collaborative Law Participation Agreement in which they agree to be strictly bound by the principles of Collaborative Law, which include:

  • Neither side will file any motions with the Court.
  • Both sides agree to fully disclose all assets and liabilities associated with the marriage.
  • Both parties and their counsel agree that there will be no secrets and no dirty tricks.
  • If either side starts filing motions with the Court, then both attorneys are automatically disqualified and the parties have to secure new attorneys.
  • If all efforts by the parties and their counsel fail to result in a resolution, then both attorneys must resign from the case and the parties must both go out and find new attorneys to represent them in litigation.
  • Collaborative Family Law requires that the attorneys on both sides be trained to work collaboratively with the other side.
  • Everyone involved has to sign a Collaborative Law Participation Agreement. Other experts can be called in by the parties to assist them in resolving the case -- psychologists, psychiatrists, therapist, financial planners, etc. -- which makes these cases multi-disciplinary.

This type of cooperative efforts to resolve clients' family law issues is a 180-degree shift from the way divorce and custody cases have historically been handled.

In Collaborative Family Law, there are no motions filed and there are no hearings. The parties and their attorneys meet together in a 4-way conference and agree to settle the case in the best and most inventive way possible, thereby eliminating much of the anger, hostility and resentment that usually accompany these cases. This, too, is a way for parents to focus their time, energy and attention on devising a creative way to share parenting time with their children rather than concentrating on how to defeat the "enemy".

Which Attorneys are Trained in Collaborative Law?

Specifically trained Family Law attorneys, financial professionals and mental health professionals serving the greater Louisville metropolitan area (including surrounding Kentucky counties) have joined together to create the Kentucky Collaborative Family Network, Inc. <www.kycollaborative.com>.  You can find a directory of attorneys and other professional trained in collaboration.

The Lexington/Covington/Northern Kentucky area's collaborative Family Law needs are served by the Northern Kentucky Collaborative Group, Inc. <www.nkcfl.com>.

Bill Hoge has been a trained Collaborative Law Attorney for many years and he is available to represent parties willing to make a genuine commitment to the collaborative process.

Getting Started

If you've made your decision to proceed collaboratively, here's how to get started:

  • Talk with your spouse or the opposing party about the benefits of collaboration.
  • Each party needs to choose a trained collaborative lawyer.  In the Louisville area, we recommend talking to professionals listed atwww.kycollaborative.com/directories.php
  • Each party needs to meet individually with his or her own collaborative lawyer to discuss the details of the collaborative law process in your situation.
  • Both parties and both lawyers must sign a Collaborative Law Participation Agreement that binds all the participants to the principles of the collaborative process.
  • Both parties and their lawyers attend the first collaborative law meeting.  The ground rules of the process will be discussed, primary needs and issues will be identified, the executed Participation Agreement will be exchanged and future collaborative sessions will be scheduled.

Talk to us today about how ADR (alternative dispute resolution) can help resolve your Family Law problem.