Progressive Divorce: A 4-Phase, Outcome-Driven Approach to Nonlitigated Dispute Resolution
The Matrimonial Strategist ™, Volume XX, Number 6
Progressive ® Divorce is a staged or incremental approach to family law. Consistent with the proven tenets of sound program management, Progressive Divorce clients benefit from carefully structured problem solving and mediated negotiation methodologies. The process incorporates a marriage of positive contention management and inter-relational science to resolve disputes while rehabilitating relationships. In fact, complete reconciliation is always a possibility. Lessening non-productive conflict between the parties is an overarching objective.
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The approach is outcome-driven and project-based. It recognizes that cost is invariably a function of scope, time limitation and quality of outcome. It is structured. It recognizes that structure imparts confidence and alleviates some of the fears of the unknown while increasing efficiency and effectiveness, especially at the earliest stages. It is vigilantly budgeted, since exhausting financial resources and burning out before a thoughtful settlement can be reached leads to “meat axe” compromise unworthy of the system and the talents of counsel.
The approach is readiness-triggered. Readiness is always a function of the parties’ individual levels of ability and willingness. Progression from unwilling and unable to willing and able requires careful facilitation. Finally, there is a definite consulting methodology. Quality assurance cannot be accomplished when processes are purely ad hoc.
The Four Phases
Progressive Divorce moves through a progression of phases:
- Value-Added Divorce Facilitation;
- Trial Collaboration;
- Recusal Pact and
- Conclusion.
Value-Added Divorce Facilitation. Phase I is a step by step value-added process guided by one Reconciliationist. The goal is to make as much progress as possible – in terms of reconciling sub-issues – prior to filing initial pleadings, if in fact they even become necessary. While Phase I reconciliation work is ideally done by an attorney trained in the process, it does not involve conveyance of legal advice. Rather, it focuses on establishing a negotiated problem-solving framework, including skill transfer and inter-relational work. Jointly retained experts may be retained as required.
Discovery, which can always be reopened should the matter ends up in litigation, is ideally completed here. Stipulations of fact may be entered into, particularly agreements concerning evaluation of assets and liabilities, plus agreement as to the intact family budget and standard of living. The process accomplishes the requisite amount of data compilation, with a far better Value-Adding Work to Elapsed Time Ratio than can typically be achieved within the pendency of a matrimonial action.
Phase I fosters trust – if fact gathering successful – while providing a “Red Flag” should fact gathering be blocked by any party, thereby signaling bad faith and the necessity for litigation. At Phase conclusion, the parties will have working skill set. They may even reconcile. A partial agreement may be reached, requiring independent lawyer involvement in next Phase. The parties may reach complete accord, which is then memorialized in plain language memorandum, much in the same way a mediator might draft such a memorandum.
Trial Collaboration. At Phase II, the parties retain independent attorneys who are open to collaboration and the possibility of entering into a “recusal pact” at some point. Note, however, that the recusal pact is not indispensable and, if used, may never even be exercised. (See Collaborative Law — How It Works and Why Progressive Divorce is Preferable in this issue; see also the article on collaborative law in the July 2000 issue of The Matrimonial Strategist as well as the article on collaborative divorce in the January 2002 issue.)
During Phase II, attorneys can stipulate to coverture, review and formalize prior stipulations, check the adequacy of discovery, craft Property Settlement Agreements and proceed directly to Phase IV to conclude the matter. Jointly retained expert involvement can be continued or arranged as needed.
The scope of the attorney’s work here and subsequently depends upon how much was accomplished at Phase I. Apart from picking up where the Reconciliationist left off, during Phase II, attorneys can conduct legal research and draft legal memoranda on specific points requiring decision making information of an applied legal nature, while advising both parties of their legal entitlements and risks absent a negotiated agreement. They can check the adequacy of discovery, craft property settlement agreements and proceed directly to Phase IV to conclude the matter.
Jointly retained expert involvement can be continued or arranged as needed. Attorneys might argue isolated disputes before a mutually retained Private Arbitrator to resolve any deadlock. The Reconciliationist may stay on — as required or desired — to coach, encourage and coordinate the balance of the effort.
Recusal Pact. Phase III is virtually identical to Phase II, except that all are confident enough with the progression to responsibly enter into a recusal agreement – but only if it would make sense or create perceived benefits to do so.
Conclusion. Phase IV consists entirely of winding-up activities, including those case-specific details handled both before and after putting the divorce through as an uncontested matter with a property settlement agreement.
The Role of the Reconciliationist
The Reconciliationist helps the parties and their attorneys achieve settlement through the use of “mental models,” a term coined by Scottish psychologist Kenneth Craik in the 1940s. Learning how to use mental models quite effectively does not require any formal training whatsoever in psychology. The concept is more closely based on philosophical discourse skills than anything else. It closely examines how people get from observing data to deciding what to do – all through a rapid-fire chain of inferences. Through training and practice, the use of this and other allied skills in the context of facilitating settlement efforts can achieve remarkable results.
Attorneys can easily be trained in these skills, along with the related practice of balancing advocacy with inquiry and reflection, inasmuch as attorneys and other professionals are often pre-disposed to giving opinions and arguing points of view, rather than giving their all to creative problem-solving and learning about the overlapping needs of the parties they represent. A Reconciliationist can be called in as a matter of course, or from time to time as desired, to provide a source of feedback and coaching concerning the flow of the process. How the Reconciliationist is used beyond Phase I is entirely up to the parties and their attorneys.