Issues And The Interests Of The Parties example essay topic

Civil Courts prefer to remain impartial towards parental religious beliefs and practices when determining what is in the best interest of a child. Yet, case law makes it clear that the religious practices of the parents and the proposed course of religious education may become relevant factors for the court to consider in determining custody or visitation. Recent statistics indicate that the divorce rate in the United States has reached fifty percent and shows no sign of decline. Polls show that Americans are become more religious and that bi-religious marriages are on the rise. When the parent informs the attorney that the opposing party will attempt to use his or her religious beliefs, practices, or affiliation to discredit the case, the practioners would state that there is no place for marriage in a best interest hearing and that judge would not tolerate such irrelevant evidence.

However, the reality is that religious practice may become a relevant factor and to simply dismiss the possibility of religious attack may be detrimental to the parent in any effort to obtain custody or unrestricted visitation. Religious freedom is a sacred ideal in the United States and the protection of those rights is crucial. Amendment 1 of the Constitution of the United States provides that the "Congress shall make no laws respecting an establishment of religion or prohibiting the free exercise thereof". Every parent is entitled to an objective and bias-free custody or visitation trial.

When the opposition's pleading are filed with critics of the parent's religion, negative comparisons to cults and other pejorative and conclusory statements, the parents involved will not be able to get a fair hearing. As one court succinctly states "intervention in the matters of religion is a perilous adventure upon which the judiciary should be loath to embark". Everyone knows of nightmare stories about divorce, involving huge legal bills, court battles, seething resentment and emotional scars for all involved. And with such issues as religion which is fundamental to the beliefs of each parents being heard and criticized by the Court that has vague ideas and stereotypes of certain religious practices can make an already difficult experience more difficult. Divorce mediation offers separating couples the chance to work with a neutral third party, mediator, to resolve differences and find solutions. Unlike a judge or an arbitrator, a mediator has no power to make decisions for the divorcing spouses.

The mediator's job is to help the spouses negotiate an agreement that each of them considers fair enough to accept. By personally participating in the creation of their own agreement, couples in divorce mediation maximize their control over the dissolution of their marriage. This reduces the probability of post-divorce disputes and increases the likelihood of post-divorce compliance. Moreover, the stress and anxiety associated with separation and divorce, particularly for children, can be reduced. Participation in mediation assists parents in affirming their affection and concern for the children and can reduce the normal fears and anxieties of children concerning the 'loss' of one parent. Research indicates that the successful adjustment of children following separation and divorce is directly related to the level of cooperation between parents and their continued involvement in the lives of their children.

Mediation encourages participants to see themselves and each other as capable parents with a continuing responsibility to plan together for the future of their children as they negotiate a solution that is satisfactory to both parents by not just looking at a fixed pie but creating solutions that are beneficial to both parties by expanding the pie especially concerning issues concerning religion. Negotiation can be defined as a communications process used to put deals together and to resolve conflicts. Negotiation is a bargaining process and as such requires effective communication from all sides in order to reach a mutually acceptable solution and resolve the conflict. In order to do this, however, each party involved in the dispute will need to make a certain number of concessions. Negotiation is also a process, which needs to be managed. Information about the situation and those involved must be collected, analyzed for relevance, and used wisely in the pursuit of arriving at a solution.

However, making these decisions may at times difficult because many decisions must have to be made in the face of uncertainty. Effective negotiation can only be supplemented by complete and careful preparation. These are consideration of alternatives, learning about the other side, asking "what" and "how" questions, understanding needs and interests, learning expectations, understanding perceptions, determining attitudes, and estimating a point of agreement. The facts of this case study are taken from a case and the facts are analyzed in light of the foregoing means of effective negotiation.

Robert and Jennifer were married in 1984, in a Roman Catholic Church. On July 9, 1985, their son Bobby was born. He was subsequently baptized in the Catholic Church and Robert and Jennifer agreed to raise him in the Catholic Father. In February 1986, Jennifer stopped going to the Catholic Church. In November 1986, she became a member of Jehovah's Witnesses at which time she stopped going to family gatherings and she refused to celebrate holidays. The relationship between Jennifer and Robert deteriorated where they started sleeping in separate rooms and communication was hard to come by.

In 1988, they obtained a divorce decree giving custody of Bobby to Robert and visitation rights to the mother, subject to restriction that mother would not teach or expose the child to mother's religion. Preparation is especially important in this setting because the parties involved are not aware of the "unknown practices" and the communication is obstructed by stereotypes of the practices of Jehovah Witnesses. The parties involved must know the parent's religious beliefs and practices and assumptions are no substitute for relevant evidence. Children as well as the parties involved are confused when parents live lives of denial, confusion, secrecy and avoidance of religious issues which may have been a big factor in the onslaught of divorce proceedings.

By facilitating communication, each side can understand the needs and interests of both parents and by asking "how" and "what" questions, further elicit information rather than "why" questions which can elicit defensive answers from the opposing side. These how and what questions aren't used to build on the assumptions already at hand but to fill in the blank or missing information that have caused the distress and conflict between the parties. By asking "what" and "how" questions a negotiator can learn the reasons behind the other side's positions and seek to satisfy those interests rather than the more concrete issues that may stifle progress. Furthermore, as Fisher and Ury assert, we should always question our assumptions about others because people hold different views that many of us think are irrational.

On the other hand, if we inquire emphatically, taking their feelings seriously and trying to trace their reasoning to its roots, it is sometimes possible to effect change and in this instance be able to understand. The Jennifer and Robert who are part of the negotiation know that although their relationship has broken down, they are both very concerned about the welfare of Bobby. Problems that surface with competitive bargaining are that the negotiation often becomes argumentative, thereby threatening the parties' bargaining relationship. As cooperation between the sides broke down, the negotiations often deteriorated into a series of angry exchanges and retaliation by both sides.

Past exploitation, the expectation of future exploitation, lack of faith in the negotiation process, and pure vindictiveness can all effectively sabotage a negotiation when they are allowed to override the purpose of the negotiation, which is the peaceful resolution of conflict. The best solution is to distinguish between the issues and the interests of the parties involved. The issues are those things, which need to take place before the dispute can be resolved, and are often obvious to all parties involved. It is essential that one does not make assumptions about the other. Since negotiation is a process of communication; it is necessary for all parties to engage in open and honest communication, asking the right questions to uncover as much information as possible about each other's interests and concerns. It is also necessary for parties to listen to, as opposed to merely hearing what is being said, in order to be able to decipher some of the underlying and hidden interests, which may not be clearly stated.

It is also very important to separate the people from the problem. Instead of attacking each other, Fisher &Ury suggest that the parties focus their attention on attacking the problem. During disputes, people become emotional, seeing only their side of the story, and accuse someone else as being the root of the problem. "Failing to deal with others sensitively as human beings prone to human reactions can be disastrous for a negotiation" Since both Robert and Jennifer are parents of Bobby they should be sensitive to each other in hopes to preserve an ongoing relationship. Each side must make a good faith attempt to see the issue from the other's point of view. They are both conscientious and loving parents but practices of Jehovah Witnesses that are different and foreign incited in the couple and the court fear that brought about the solution to give full custody to Robert and visitation to Jennifer on the condition that Jennifer does not indoctrinate the child in the beliefs of Jehovah Witness.

This gives apparent power on the part of Robert to engage in threats and arguments due to the court ruling. In order maintain a balance of power, the parties should acknowledge tactics used by the opposing side, demonstrating that the other side is not intimidated by them and recognize that they have something to gain from a successful resolution and opt to pursue a more cooperative approach. In these exchanges involving such diverse motives and viewpoints, parties need to ensure there is an even balance of power and avoid being exploited. Robert Axelrod devised a series of steps to achieve this.

To avoid exploitation, parties should being cooperatively, whilst at the same time leaving room for maneuver. The parties also need to show that cooperation is sought. If cooperation is met with antagonism, then one must retaliate and stating that nothing can be gained through competing. If the opposing party does indeed adopt a cooperative stance, then they should be forgiven and accepted in god faith. Moreover, all parties have a responsibility to explain what they are doing and why. All parties need to "be clear and consistent in the negotiation approach" because consistency and predictability allows the other side to offer concessions without the risk that they " ll be exploited.

The negotiation would be more effective if both of the parties are flexible. The parties should be both consistent and flexible because the less they could depend on the negotiators as to what actions would be taken against them, the less willing they would be to offer concessions. Moreover, if one party does not have any confidence in the other party to implement the agreed upon solution, the motivation to come to agreement is seriously diminished. In considering the alternatives, both Jennifer and Robert have a strong interest in the welfare of the child. As parents they want to be able to share their moral and religious beliefs to the child without having those restrictions placed on them by an arbitrary judge. Robert could just seek to enforce the judgment by the court and deny the mother to the child.

Jennifer could prolong this litigation with appeals to fight for her custody rights. However, as parents, they would want to come together and come up with a viable solution so that the child at hand is not detrimentally affected by their decisions. The parties have to constantly remind themselves what their common interests are which is the child and highlight that they are at the negotiate to solve the problem of having to raise the child in two separate household with differing belief system. Since the court judgment is at Robert's favor, he may use tactics employed in a distributive bargaining process, which are "threats and argument" and "apparent commitment to positions during the negotiation process". This is a zero sum game where the moves are designed to claim value to the existing pie that is apparently fixed. A distributive bargaining can be won by the side that first commits credibly and irreversibly which Robert adamantly desires the sole custody of the child based on the court ruling and deprive Jennifer of the child if the parties begin to feed on the emotional and psychological pains that they had to deal with the divorce proceedings.

Issues are tangible whereas interests are not. A lot of times we get bogged down in the issues without trying to figure out the underlying interest that might open up a lot of possibilities how to satisfy those interests. After communicating the fears and concerns of each party and going below the line to satisfy the underlying interests that both parties have, the parties can create options and make suggests which will build on their common quest to find a viable solution. In considering these options, the basic test of any proposed joint agreement is whether it offers higher subjective worth than the side's best course of action absent agreement. In this case, if Jennifer and Robert do not strive to continue the ongoing relationship with the probably the only "bond" that is left between them is their son Bobby, the best alternative to negotiated agreement (BAT NA) of continued struggle and fight over custody would not be in line with looking out for the best interest of Bobby. Despite the parties' attempts to find mutually acceptable solution through a process of integrative bargaining, it may be accepted that the parties may not be completely happy with all the proposals.

One way to overcome this is for the parties to agree upon a standard by which the solution can be universally recognized and upheld. The parties may ask the mediator for a court guideline on issues of religion. Moreover, continued communication between the parties, the parties now have a better understand of each other's interests and positions and are able to use such guidelines to find an objective criteria to find a viable solution. The parties can choose to determine for themselves whether certain practices of religion can adversely affect the child listening to each other's concerns and what is important to each side in their religious beliefs The main concerns of the parties are proper medical care, college education and activities at school and interaction with Robert's family that Jennifer's religious practices may forbid, the parties need to address each other's concerns and reach an agreement about religious training which allows Bobby to be raised in households that have mutual respect for the religious differences in the other household which will ultimately benefit the child. We live in a pluralistic society. Within the high degree of integration and assimilation, differences continue exist.

Full access to both parents may afford the child a bi cultural as well as bi-religious experience. Furthermore, there is a value in letting the child see, even at an early age, the religious models between which it is likely to be led to choose in later life. Such religious diversity has also been supported by the judiciary.