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Collaborative Divorce: A Case Study

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Irwin Kuhn and Marlene Moses wrote this article outlining the steps of a hypothetical collaborative divorce. It was originally published in the Nashville Bar Journal.

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Nashville Bar Journal Article on Collaborative Divorce

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(Originally published by The Nashville Bar Journal, December 2011-January 2012)

The stage for a workable post marriage relationship between two people whose lives will always connected through children or family or friends is not set well by a divorce complaint dramatically setting out the gory details of one party’s “inappropriate marital conduct” followed by interrogatories requiring each side to commit to writing “with specificity” all complaints they have about the other and to list “with specificity” all acts of misconduct, and to “identify each witness thereto”. But this is often how the divorce process begins. And, then there is “Have you had any intimate physical contact, including …” Come let us reason together?

As have many celebrities and high profile business executives and politicians, the comedian Robin Williams and his Marsha chose an alternative path to a traditionally litigated divorce, collaborative divorce. Said Williams, “I’m lucky, you know, with someone like Marsha, we have amazing kids and it’s not a slash and burn. But the idea that it’s going with love, I think, is important. And for me it’s been… a good thing.”

The collaborative path to divorce is being chosen nationally and now in Tennessee, not only by people with high profiles concerned about personal privacy. Those who chose collaborative divorce do so to preserve civil relationship with someone they once loved and may well have to continue working with in the future as parents. For some there is little hope or need for a future relationship but they want to end their marriage without the added stress of litigation.

FACING THE STRESS

Divorce and separation are the most stressful life events for American adults trailing only the death of a child or spouse. For children, elevated levels of discord during divorce increase the chances of psychological problems such as depression, anxiety, aggression and other disorders. In the worst cases, where one parent in the process alienates their children from the other parent, studies show that when those children become adults 70% suffer depression, 35% battle chemical dependency, and are frequently estranged from their own children.

Traditional litigation based divorce cannot be blamed for problems that may have their genesis well before the divorce process began. But, tales of the divorce process making a bad situation worse are familiar. Too often aggressive tactics designed to present parties in their worst light to gain a larger share of the pie and battles over children create lasting fissures.

COLLABORATIVE FAMILY LAW IS …

Collaborative family law is the newest tool in the alternative dispute resolution toolbox. Collaborative traces its roots to Minnesota in the 1980s. But, it began to take off in the first years of the new millennium. The International Academy of Collaborative Professionals (IACP), the ABA of the collaborative world, had just 200 members in 2001. Last year it topped 4000.

North Carolina attorneys led the first collaborative training held at Vanderbilt Law School in Tennessee in the summer of 2009. Additional training was offered in 2010 and again last September.

The Middle Tennessee Collaborative Alliance (MTCA) was formed by a group of lawyers, mental health professionals, and financial planners interested in a divorce process more likely to preserve relationships.

The collaborative process begins when husband and wife hire lawyers who enter into a participation agreement with them and each other that they will work to help the clients reach a negotiated settlement. They will not go to court with them except to file a complaint on the grounds of irreconcilable differences, and then to have the judge enter a final decree.

COLLABORATIVE IS NOT …

The agreement to not go to court with clients is the essence of the collaborative process. If the attorneys do not make such a commitment, it is not a collaborative case.

The agreement to forego court puts a premium on settlement for clients who will have to spend more money and more time if they must hire litigation counsel. The collaborative divorce attorney is transformed from litigator to transactional lawyer. The measure of success is reaching a negotiated settlement that endures the test of time. There is no financial or other incentive to let a court decide the outcome of a case.

GOALS V. POSITIONS

The emphasis on a negotiated settlement encourages clients to pursue their goals and interests rather than their positions.

Dad may demand “50-50” parenting time, or “joint custody”. Mom may insist on “standard parenting time.” Those are positions.

In collaborative negotiations, the focus is on the “why” behind the position. Dad needs to know he will have an important, active role in his children’s lives. Mom is concerned about the amount of time the kids will spend with caregivers in the 50-50 model since Dad works long hours as a busy professional. Creating a parenting plan that addresses those needs and concerns is possible without excluding any. The result is a win-win for Mom and Dad, and a win for the children.

DISCOVERY

Discovery? Of course there is, but form interrogatories and requests for production focusing on past defalcations are jettisoned. The parties from the start make a commitment to what the MTCA calls in its participation agreement “full and honest disclosure of all information pertinent to the resolution of [the] case.” This is hardly a radical idea. Judge Philip Smith, who handles the bulk of Nashville’s family law cases, states in his chamber rules, “[i]nformal discovery will save the parties significant cost in attorney fees and may result in less adversarial attitudes toward one another rendering settlement more achievable.”

Will clients be forthcoming? Experienced attorneys have a practiced ability to tell not only if their own client is withholding information but also whether the other side is providing what they should. The collaborative agreement instructs the attorney to withdraw rather than allow a client to act in bad faith.

USE OF OTHER PROFESSIONALS

Collaborative practice is also a major change from traditional family practice in the way other professionals are used. Rather than hire battling experts, such as financial planners and child specialists, parties look to neutral authorities trained in the collaborative process who work by agreement that they will never be called on to testify in court for one side or the other. They also agree they will not represent either party following the divorce.

Since it is usual in collaborative practice for the parties to meet together, with counsel, to identify goals and negotiate settlement, the possibility for highly charged emotions is distinct. It is not uncommon for parties to bring in a neutral to help control the discussion. These neutrals, called coaches , usually have expertise in mental health and relationships. Their role is not to provide counseling, but to use their training to keep difficult conversations civil and focused on goals. Attorneys find that skilled coaches help them understand the subtextual or unspoken goals of parties in a way that profoundly helps them develop settlement options.

The use of coaches varies from jurisdiction to jurisdiction. In some, it is common to use two coaches, one for each party. In others, a single coach facilitates discussion in a manner similar to a mediator in other cases. In still other jurisdictions, coaches are rarely involved.
MEDIATION V. COLLABORATIVE

As effective as mediation is in many cases, too often conciliation efforts come after damage has been done. Many lawyers refuse to go to mediation with clients until completion of discovery that is often meaningless, frequently burdensome, and usually expensive. As well, parties learn little about working together when, as is the common but anomalistic practice in Nashville, parties are separated from the beginning of mediation until the end.

COST

Naturally, the question of expense arises. Multiple meetings with both lawyer; add in mental health professionals, financial experts, and child specialists. It certainly sounds expensive and the perception that collaborative is only for the wealthy persists. But, seasoned collaborative lawyers disagree.

Kevin Fuller addressed the issue. Fuller is a Dallas, Texas, matrimonial lawyer listed in Best Lawyers in America, Top 100 Lawyers in Texas, and chair of the Texas Bar’s collaborative section. Since 2007, Fuller says he has done 56 collaborative cases and three he describes as “go-get-‘em” cases. He calculated that the fees from the three “go-get-‘em” cases exceed the fees in all 56 collaborative cases. So much for the expense fear.

Why were Fuller’s collaborative fees lower despite the meetings and the experts? Paying counsel to propound and answer discovery requests and then spend time in court over the sufficiency of such responses and for other motions is no bargain. Oh yes, and, then one might toss in a motion to have a psychological exam to determine just how crazy their spouse was for being married to them all this time.

On the other hand, collaborative protocols are designed to make meetings efficient and the goal of all is to achieve settlement. Put another way, the cost of war is usually more than the cost of diplomacy.

CONCLUSION

One colleague when first presented with the term “collaborative divorce” joked that it was an oxymoron. Is it pie in the sky? In the late 90‘s when mediation was new in this area, the common refrain was that if couples could mediate their differences they would not be getting divorced. Now, mediation is required by statute in most case involving children or before a case goes to trial.

Certainly collaborative methods of marital transition and post-divorce dispute resolution emphasizing clients working together to craft their own agreements are far less likely to promote alienation, distrust, and bitterness through traditional litigation and more likely to be durable and workable. Privacy is protected. Business disruption is minimized. Collaborative divorce is the next phase.

 

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