Important Talking Points for the First Meeting

Goals: Working together toward resolution, Staying out of court and Respecting both parties' goals. What does that mean? Good faith negotiation, Marketplace bargaining v. interest based/values based negotiations and No threat of cour.

Full Honest and Voluntary Disclosure

To keep costs down: do a good job of disclosure and do it when asked
Information is ordinarily collated by a financial neutral as a joint financial disclosure
Circumstances under which Information may be obtained separately

Integrity/Safety

  • Trust that all professionals bound as well
  • Not take advantage of the mistakes of others
  • Withdrawal if process abused vs termination/constructive termination
  • Confidentiality: discussions during meetings
  • Confidentiality: written materials, written communications (e mail, etc.) among team
  • Confidentiality: reports, written materials from consultants
  • Exceptions
  • Endangering health, property
  • Intent to conceal or change child's residence
  • Signed agreements intended to be enforceable
  • Examples of client good faith/bad faith participation in process
  • "Shadow counsel" and independent consults and second opinions

How does it work

Attorneys' role:

  • Differs from standard adversarial representation
  • Advisor, not gladiator - job is to facilitate negotiation of a settlement
  • Advisor to one party only
  • Not "attorney of record" now or in the future
  • No filing of motions
  • Disqualified from representing either party; that agreement survives the contract and
  • the process
  • No testimony in adversarial proceedings

Fees for the process:

  • Professionals are independent from one another
  • Payment of fees: each party's lawyer and other professionals must be kept current in
  • fees payment, with disputes about ultimate responsibility reserved as a negotiations issue

Communications:

  • Professionals will confer with one another
  • Notes will not be shared
  • Need to clarify what will be shared of your conversations with your attorney

Children:

  • Promoting a caring, loving relationship with both parents
  • Keeping children out of the middle
  • Providing a voice to and from the children independent of either parent
  • Parents pursue no other avenues re children (evaluation or therapy or consultation) without the other parent's knowledge
  • Maintaining status quo by agreement or order

Limitations:

  • No guarantees
  • Challenging; each party must assert his/her needs reasonably in a manner that can be understood by the other
  • Need to vigorously represent one's own interests while considering the legitimate needs of the other

What would cause the process to end before settlement?

Termination:

  • Unilateral choice of one party
  • Automatic: seeking court orders

Withdrawal:

  • Unilateral choice of attorney: process continues
  • Mandatory (abuse of process)

Constructive termination

  • Persistent bad faith or abuse of process
  • If provided for in retainer agreement with one's lawyer
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