In Depth Divorse Law Case Study - Assignment Example

General Simulation Information David who hails from California never pursued his education to the college or level and instead chose to open a business enterprise and named it after his parents, Dolce Worldwide Company. It dealt with a wide range of business activities which included a clothing line as well as restaurants and motels. It had branches in various parts of the globe and has more than ten branches in United States. Dolce Worldwide Company is among the leading clothing firms in United States of America. David started his Company from a scratch and no one would have ever imagined that it would be as big as it is currently. He founded it in 2008 with an income he had saved from high school and he used to walk from his home to the offices of his enterprise on a daily basis. However, the enterprise started growing in a rapid rate and soon it was a huge enterprise. It currently has over 100 staff members who are based in its California headquarters and the number is estimated to grow even to a higher number in future. The company is doing immensely well and it is worth $8 million currently and has a profit margin of 7%. The highest gross profit margin was last year but one at 8% and they are on course to make sure it reaches that mark again and even higher. David estimates to collect around $700,000 at the end of this year in the apportionment of dividend and he intends to hold a grand party to thank all those who made the company a great success. The rest he will use to open other branches in various places in the world. Angela on the other hand is the former wife of David. They had been married for four years before their marriage turned sour. She is a teacher at California School for the deaf and has been teaching for the last five years. She met David at the school five years ago when David and his family had come to visit David’s younger brother was unfortunately deaf and that is how things started and blossomed into a beautiful and colorful marriage. They have one kid to show for their marriage. Things have not been that smooth for their marriage lately as Angela claims that David has no time for the family. He concentrates too much on the business at the expense of his family. It reached a point where David deserted their matrimonial home and rented an apartment so that he would be free from the family quarrels and concentrate fully on the company. Angela having had too much filed for divorce on the grounds of desertion and a divorce decree was granted, Angela has not had enough. She now claims half of the company David owns and will stop at nothing to get it as she claims she has been helping David with the running of the company and additionally, it would help her maintain their child as she was granted the custody of the child. She claims that if David does not yield to his demands she will make David’s dirty secrets a public affair. David did not welcome the idea because he had worked so much to build and make the company grow singlehandedly to where it is now. The fact that he married Angela could not give her a right to half of the company. He had a secret that would actually ruin him and his company but that was not to be used as leverage by Angela to force him to agree split is business into two. He had to weigh the options he had as because if the secret comes out he would have nothing left for him. He agreed that Angela should have part of the company and not half of it. It was his duty to make his company progress in the market and this was through the decisions he would make. He had an idea in mind which would work to counter react Angela’s demands. David suggested legal channels had to be followed in order to share out the company between them. They both agreed to be represented by lawyers for a desirable result in the negotiation of the contract. They also agreed that they were to be considered keenly the dispute resolution law that would govern their contract. Additionally, they were to have a legal framework that would provide clear rules and regulations which will result into a contract being fair and certain. David’s Information David is an intelligent, diligent, business minded person with the urge to be a successful businessman in the society. He identifies a market niche in his locality while he was still in high school which is unnoticed by many people and quickly maximizes on it. His diligence is depicted in the sense that he started his business from a humble beginning by walking from his residential place to his work place and nevertheless, he pushed on He does not proceed with his college or university education despite the fact that he qualified because he is business minded as he has the urge to venture into business as soon as possible. He is currently not complaining about his business although he has to work extra hard to make his company attain its previous profit margin and more. He had not thought about ever sharing his company with anyone but the failure to consider his ex-wife would bring catastrophic consequences to the company. He had to accept to negotiations that would save his company as well as provide maintenance for his child.. He however knows that it is in his companies’ best interest and will negotiate the deal and reach an agreement relying on the following conditions: 1. That he would be overall head of his company and therefore he would be in charge of running the company. 2. Gilbert should agree to share the profits with Angela in a 70-30 percentage ratio and he would get the 70% 3. There would be no change of management and working staff. David’s Attorney Information David has had a good business reputation since the inception of his business as he has been conducting his businesses in good faith and heart. He has been following the business ethical values and the laws regulating business. There is no instance has he been accused of defrauding his customers. This has earned him a clean business record. He therefore has maintained the same legal corporate attorney since he hired him. The firm dealt with a wide range of issues including family law division as it was a big firm. Joe Williams. Since he hired Williams, he has been representing him in negotiating business contracts that have been of an advantage to his company. He also has an experience in negotiating deals that involve matrimonial property and their division. He is not knew in negotiations world as he has done considerably well in the previous negotiations he undertook for Dolce Worldwide Company. He is always more than ready for David and a usual fee of $35 per hour since David has been his client for a long time and have been good friends since they met. Williams has a vast experience in family law as well as contract law and he purposes to cut a great deal for his long time friend during the negotiations. He will first keep off the idea that the company should be divided into equal portions and his wife should have the other half. He will use the marriage Acts which among others that provides rules and regulations of sharing of matrimonial property. These regulations will be a strategy to make Angela take not take advantage of David through the secret she has and use it against him. Angela’s Information Angela has had a dirty past in her life. She had been married twice before she met David and the marriages were not a success. The first marriage lasted for two months before her husband filed for divorce as Angela was cheating on her with her husband’s cousin. She subsequently married the cousin to his ex-husband after a divorce decree was issue in the suit involving her and her first husband. The second marriage did not yield much as the husband grew tired of her quarrels everyday at home and started staying out late and consequently started cheating on her. She could not take that lightly and after just six months of their marriage she was within the premises of the court and this time as the petitioner. The case was heard and a decree of divorce was issued. She opted to stay single as she concentrated on her work but that did not happen as she met and fell in love with David. She is a tough woman who does not take things lightly. She quarrels a lot even for unnecessary things which annoys David as he would like a peace of mind after having a long day at work. She makes David relent her quarrels and moves out of the house. She sees this as an opportunity and does not even try to mend fences with her husband. She move to court to get a divorce and later claims half of the company as she knows the company is doing excessively well. She uses treats to make David yield to her demands. She would use the following conditions to convince him: 1. Since they have a child, it would be in order for her to get half of the company to maintain the child to the life he was used to in their marriage. 2. Her work as a teacher is not enough to provide for herself and the child and therefore she should be maintained by the company. . Angela’s Attorney Information Birds of the same feather flock together and this is evident on the attorney Angela chooses to represent her in this negotiations. It is a man-eat-man society and only the vigilant and those who are aggressive’ make it in life, a position that her attorney holds. This is the reason why she seeks the representation of John Washington who is an infamous Californian attorney. He is known to have a reputation of using dubious and underhand means to find his way through the whirlwind of the law and especially family law where he will use anything against the other party to make them yield to the demands of his client. The means he use do not matter so long as he has achieved the task that he was to accomplish. He is arrogant in nature and crosses many legal lines to get his job done. This will result into his client being satisfied with his services and he gets paid for his services. Washington has the comprehension that his client did not take into consideration various possible outcomes during the making of her proposal to David. Notwithstanding that fact, he knows that it would be for the best interest for his client and the kid to get a share out of the company so that she could maintain herself as well as their child to the life they were accustomed to in the subsistence of their marriage. His choice now encompasses to apologize for the means used by his client in trying to bring out the idea of sharing the company. He hopes that his position will set to encourage the other party to accept the sharing of the company with Angela in a satisfactory manner to ensure her together with her child live a comfortable life. His duty would then to make sure that his client gets a good deal out of the negotiations in the long run. Teaching Notes _Simulation 1. Positional Bargaining Concepts Zero- Sum or Fixed resource bargaining Fixed resource bargaining or simply “Zero-Sum” is sometimes referred to as win-lose or distributive bargaining. It is a negotiation strategy in bargaining that is usually employed in the distribution of fixed resources like money hence the name Fixed resource bargaining. Each party in the negotiations usually feel that their objectives or interests are in a balance and therefore the major goal is the trying to and securing concession from the party that is unwilling. Hence one of the parties will lose and thus the name win-lose bargaining. It is a bargaining type that is significant since it aids in solving disputes that would otherwise no have been resolved by employing any other method. In the event that the stakes involved are very high, the resistance to decree is oftenly heightened. It is very difficult to announce as to how the matter that is being negotiated will be dealt with and furthermore, which party gets the advantage. The captious layout in the “Zero-Sum” bargaining method is analyzed by a “bargaining some model of negotiations”. There are three vital negotiation points in the model in the book. The first is the offer point in which one side opens an offer to the opposite side. By doing this, expectations from both groups are stipulated as a beginning point. Nevertheless this is done with the supposition that stipulating the desired point in which they contain their rational and final agreement. Of course the other party will rebut this favoring the target they contain. It is at this point that a struggle ensues and no further indulgences are entered into as a result of these struggles. In the long run it results into a win to one party and consequently the other party loses. In employing this type of bargaining, the technique and tricks used in the process of negotiation influences the outcome of the negotiation. Examples of the widely used tactics and strategies are outlined below: i) Want it all- As the name suggests, it is a type of strategy that is achieved in the event a side stipulates an erroneous offer during the presentation of an irrational concessions hoping that he or she will discourage the other opposing side. ii) Time warp- During negotiations, time is employed as a vital and significant instrument. In terms of arbitrary, it entails the closing date or relevant time frame. iii) Good cop, bad cop- In this strategy, distinct forms of behavior will be employed by the negotiator for example depicting unreasonableness and offering a rational together with thoughtful behavior. iv) Ultimatums- The tactic is usually employed to try and force the opposing group to subscribe to the other group in a forcible way. 2. Principled bargaining/interest based bargaining concepts It is a negotiation model that lays emphasis on the interests of the groups in question and stressing on the handling and settlement of the dispute in question. This avenue employs a rather different form of negotiation as the major reason for the bargaining is to find a two-sided agreement. In this scenario the form that is usually used is the win-win one where both parties gain in the negotiation process and usually in instances where the resolution found cannot be refined in any way. In other words, little or at times no value is left to certify the coming up of any type of resistance. When using this type of negotiation, here are four ground rules that can be used. a. Separating the main parties from the issue being negotiated In this ground rule the dispute to be determined is resolved by envisaging the benefits of the dispute to be determined. Parties are supposed to distance themselves from any type dominion as a result of their emotions or by the individuals taking part in the deal. b. Focusing on the Parties rather than their positions It is vital to identify the catalysts or the interests that make people to initiate the negotiation are similar in nature. Hence, it is critical to emphasize more on the reasons behind the negotiation. In most circumstances it will it will portray to the parties in question that their thoughts are not that different from each other. It is crucial therefore, to portray that any type of discussions will yield precise and substantial details that will make the matter at hand more tenable. c. Generation of diverse options to have a common gain Often at times when people have a set mind to achieve a particular desired outcome, they are in most instances blinded by their objectives. In the long run very little focus will be laud on the real issue that needs to be resolved. Hence it is very important to ensure that even in the event when individuals are conceptualizing, the stress on the major issue and neglect emphasizing on their immediate interests. It will in the long run subdue choices that have an attraction to all the negotiations involved. d. Base the results negotiation from an objective Criteria In any event it is usually vital to acquire various opinions before picking on one of them. In other words, the individuals who find themselves in such situations should ensure that that they have explored all the avenues of thinking as well as analyzing those thoughts. e. BATNA It full it stands for ‘Best alternative to a Negotiated Agreement’. The parties to a negotiation are supposed to have a comprehension of their choices and options as t is significant in the negotiation. Furthermore, whether the particular options will give rise to a desirable result. Consequently, all the contemplations should be put forward for the persons involved to ascertain that they contain the required information on the merits and demerits of the particular information. In the long run, they will not be susceptible and will have the perfect substitute and hence, the BANTA. In the case of David and Angela their sharing will definitely result into maintaining of increased production of goods and services which will subsequently increase their profitability and the overall well-being of the merger. They should examine the fact that letting the secret out would jeopardize the company’s interests and lead to its downfall. Having the two of them managing the company will make David be able to have a better and well defined market segment and preserve the company’s ambitious edge over its competitors. With that regard, each party should ensure that either party is contented with what the other side is offering. . Many mediators in the societies prefer using the principled model of negotiation. The principled negotiation model is not however, perfect for business realm and specifically with regard to merging. The reason for this is that both sides involved in the negotiation will be making sacrifices and they have to find a balance. No sacrifices are present in this model of negotiation but individuals usually achieve the preferred outcomes. 3. What barriers to settlement does each side have? There are several barriers to settlement in the course of negotiation. Out of those barriers, two are usually common. Strategic Barriers The vital and core reason and aspect of a negotiation can in some instances be a main hindrance to resolving the problem. The reason is that mostly the groups in the negotiation will not in all circumstances reach an agreement and one of the parties might become more intrusive than the other. It means that in the event of a dispute the percentages will be influenced. . In the case of David and Angela, Angela is the one who is more interested in the sharing of the company. His threat of letting out David’s secret is not a good tactic and will divide the two parties further. . Principal-Agent Issue In this kind of a scenario it is usually the attorneys who take part in the negotiation process. They frequently use distinct means to ensure that the get the most satisfying outcome for their client. In the end, these different strategies might have a disastrously impact on the deal. 3. What are ways the mediator and others can challenge or help eliminate the barriers? There are various ways a mediator can use to eliminate the barriers in settlement. The main one is by ensuring that the parties in question have a comprehension of the matter in question that needs to be resolved together with the people encompassed in the negotiation. In the event one comprehends the needs of the groups in the negotiation, any barrier to settlement will definitely be eliminated. The mediator should purpose to lean on one side of the dispute by supporting one of the parties by whatever means. The requirements of both parties should be stipulated and emphasis should be made on the one that is likely to be the best in those circumstances. Consequently, a mediator should pick the negotiation technique that will give a just result. 4. What types of mediation styles would be suited to this simulation and why? Before one chooses a negotiation style, the type of conflict as well as the parties in question should be considered as they will determine the style to be used. It is the duty of the mediator to ensure that he or she understands the type of issues to be determined and lay directions by the provision of way forward putting in place grounds to resolve the dispute in cordial manner. The mediator therefore, should be well conversant with the laws in the industry in question together with necessary forms that will provide a good direct a good process of negotiation. The mediator should promote the settlement by stirring the groups to find many and better options that can promote the simplistic settlement of the resolution. In the heightening of communication in dispute, the mediator provides conducive environment for the groups to find better options of their dispute. The style that would be suitable for the case of David and Angela would be facilitative style. The reason for this is that the groups involved in this negotiation are intelligent and have a comprehension for their matrimonial property and its sharing. They have a wide experience in family issues as they have been married and read about it in media and other places. They have also been advised accordingly about sharing matrimonial property and they both understand the need to keep the company kicking its benefits regardless of the threat made by Angela. 5. What stages of mediation will be most critical in resolving this dispute and why? The model based on comprehension of the dispute is usually the best one in resolving an issue in negotiation process. Understanding each other ensures different objectives of the groups are considered in the making of a decision. By appreciating this model, the sides of the negotiation will get the opportunity to comprehend each other’s mode of thinking and reach a better conclusion. It will additionally, ensure that the issue is resolved out of court or other means of resolving conflicts. When the parties come together there are high chances that the issue will be solved. The parties will eventually handle the dispute as they have enough knowledge and are stirred up towards bettering the society. 6. What types of process skills will be needed by both the mediator and the parties? Skills that are needed in the case and David and Angela, the mediator should have the following skills: Pre-mediation contact, this should be a means to ensure that both groups have the knowledge of the conflict in question. The mediator can do this by contacting both parties on separate times and in the case above, the mediator should contact David and tell him of what Angela’s motives. In this procedure In the course of the process, the mediator should make sure that the parties converse and listen to each other and comprehend the issue at hand. Additionally, it is the duty of the mediator to interpret, and reframing the phrases that have not been understood. The mediator can as well help the groups by ensuring that particular questions are asked as well as suggestions are heard. 7. What emotional issues are likely to be a factor in mediating this simulation? How can the mediator and other parties/attorneys respond In most circumstances emotions are usually high especially in negotiation of that nature. Mediators and lawyers furnish in the handling of emotional forces during the negotiations. The mediator should therefore, ensure that all parties are listened to and their emotions are put into consideration. In the emotional aspect in the case of David and Angela, the mediator should determine the catalyst, give them a chance to provide their distinct tactics, listen to them and finally organize the answers in a right manner. In cases of misunderstanding, the attorney should ensure that he offers apologies to the other group on the client’s behalf. . 8. What cognitive effects may be a factor for each party? How can the mediator and other parties/attorneys respond? In the case of David and Angela, the following cognitive aspects might influence the matter to be determined. Selective cognitive perception is among the main factors that can influence the groups in conflict. The reason for this is that since each and every one of them has aims and objectives and is of the opinion that it ought to be handled in a certain manner. The mediators and the attorneys should promote their speaking up on different matters. It is clear that the parties posses things that they attach a lot value on. David is of the opinion that he owns something that Angela wants and hence he should give him a listening ear and put his thoughts into consideration. It could be resolved by ensuring each party comprehends what the other on is offering. 9. What merits-based barriers are likely to surface during the mediation and how can the mediator and the other parties handle them? In such circumstances, legal disputes and antagonism will take place. The attorneys and the mediators should make ensure that these stumbling blocks are brought together for a less costly and fair settlement. A party lacking information can be a big issue that results into a stumbling block in settlements. The mediator would therefore, have to ensure each side has provided the required information and without withholding any relevant information. Coming to the case of David and Angela, the mediator should ensure that the relevant bodies provide the required statistics about Angela’s needed financial maintenance and needs. Having all the required information is available and the issues can be dealt with the critical methods. . 11. Reaching Agreement Explain how the parties can integrate interest based bargaining with positional bargaining to achieve an agreement? As mentioned earlier, the most qualified style in this case is the Facilitative mediation style. The groups in question to lay all their demands and what they expect from the negotiations. Afterwards, room for deliberating should be provided which will make it possible to have an unconditional final solution. The mediator in addition should ensure that the required information and items are present during the negotiation. With this regard the process of appending the signatures would be cheaper and smoother. The fact that the parties are intelligent and share the same sentiments, they will easily reach a consensus. 12. Attorney-Client Relationship Explain how your simulation can be used to teach the management of conflicts between lawyers and clients. The first duty of an attorney in the negotiation process is to ensure he or she comprehends the client’s interest and needs. The attorney should lay emphasis on finding a solution to the problem the client is facing at hand. After the identification, he or she should guide the client so that they can make an informed right decision. The attorneys should provide and a wide range of solutions and guide the client in the choosing the best by carrying out a research on the ways of handling the issue in question. In this case for example, David should make it his purpose to carry out a research on the sharing of matrimonial property and the principles followed. By doing this way, he will have succeeded in the coming up with a good decision after the attorney has given him pieces of advice. Read More