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Editorial


Front Page - Friday, March 3, 2017

Collaborative divorce has promise, says Vital




Divorce is all too common in the United States, but that doesn’t make splitting up any less painful.

The incontrovertible truth is that, yes, breaking up is hard to do.

Experts say the exact number is hard to pinpoint, but most studies suggest that about 40 to 50 percent of married couples in the United States eventually divorce.

The divorce rate for subsequent marriages is even higher.

Splitsville can be a messy, frightening and expensive process for both parties, replete with high-priced attorneys, dictatorial judges and timelines for resolution that can drag on.

But there is an alternative to traditional divorce called collaborative divorce that is gaining traction throughout the country.

Although this particular method of divorce resolution hasn’t taken a strong hold in the Hamilton County jurisdiction yet, it could become more popular at some point, says Patricia Best Vital, a Chattanooga-based attorney, arbitrator and divorce mediator.

The divorce trend already has a niche of organized practitioners in Nashville and Knoxville.

Collaborative law provides divorcing couples an alternative to a traditional courtroom divorce. Typically, a collaborative divorce involves a settlement tailored to the needs and situation of the divorcing couple and their family.

The approach also allows financial and mental health professionals familiar with the collaborative law process to help divorcing couples come to agreement.

Vital, who has a law license in Tennessee and Georgia, has been trained in collaborative law in Georgia, where many jurisdictions in the state are accommodating it.

But she says the Chattanooga area is a tougher nut to crack when it comes to collaborative law.

That’s because the courts and judges in Hamilton County haven’t yet made the procedural and clerical accommodations that would allow for easy understanding and processing of cases resolved via collaborative law, she adds.

“I love the concept of collaborative law,” Vital says. “You try to work out all your gnarly or contentious relationship issues on the front end before you move ahead (with the court phase of the divorce.)”

The East Tennessee Collaborative Alliance in Knoxville is a year-old organization that marshals professional assistance to clients through its team of lawyers, coaches/facilitators, specialists and financial advisors.

“By using our team, you can alleviate a lot of the fear (of divorce),” says Heidi Wegryn, Knoxville attorney the founding president of the ETCA.

“The collaborative divorce is the divorce where you set up an interdisciplinary team,” she continues.

While traditional divorce focuses on resolving legal disputes, Wegryn says the collaborative process addresses every facet of the separation with its holistic approach.

The process is client centric, with the focus on respectful problem solving.

“If you’re only addressing the legal divorce, it’s really hard to get legal issues resolved when you’re ignoring the rest of the divorce,” she notes.

“There’s a legal divorce, an emotional divorce and a financial divorce.”

The appeal of collaborative divorce for many clients is it takes judges and court rooms out of the equation.

“Traditional divorce is adversarial and the judge makes the decision between the two sides,” says Patti Jane Lay, a Knoxville attorney who is part of the ETCA team.

“In collaborative divorce, the parties actually decide the outcome with the help of the team. It’s sort of like mediation.”

Mediation, or alternative dispute resolution, is mandated in Tennessee for custody and visitation disputes. It is a process in which a specially-trained, neutral third-party mediator meets with a divorcing couple and helps deal with financial and a variety of other issues before going to court or in lieu of a court trial.

The last step of the highly private collaborative process is when the marriage dissolution agreement is delivered to the court by the attorneys for the judge’s final approval.

 The collaborative movement

Minnesota attorney Stu Webb practiced family law for more than 20 years when he began exploring alternatives to traditional divorce in the late 1980s.

Webb developed a model where lawyers were prohibited from going to court over any issue, under any circumstance.

Without court as the final arbiter, Webb envisioned a scenario where lawyers would be forced to meet the challenges of problem solving.

From this model, collaborative law was born – as were many of the principles of present-day collaborative divorce.

Webb announced in 1990 that he would no longer go to court; that he would only represent clients in constructive participatory negotiations that would, hopefully, result in amicable settlements.

If the negotiations failed to reach a consensus, Webb would refer his clients to litigation counsel and withdraw from the process.

The interdisciplinary approach to divorce soon followed in California in the early 1990s.

A group of psychologists partnered with a group of lawyers and financial professionals to better expedite the divorce process in a more supportive, thoughtful and constructive way.

By 1994, family lawyers in California started practicing collaborative law.

In 1999, the first American Institute of Collaborative Professionals Networking Forum was held in Oakland, California.

The movement grew quickly, changing its name to the International Academy of Collaborative Professionals in 2001.

Today, the IACP has more than 5,000 members from 24 countries.

It creates standards for practitioners, training and collaborative practice training for industry organizations – such as the ETCA.

“We have to be collaboratively trained,” says attorney Jackie Kittrell, part of Wegryn’s ETCA team of 25 professionals.

The ETCA is one of only three collaborative divorce organizations currently in Tennessee. Others are in Nashville and Memphis.

Wegryn says the ETCA handled “10 to 15” cases in its first year.

“It’s not for everybody, but the response has been very positive,” she says.

“It’s a win-win (alternative to traditional divorce) if you’re looking at prospects of a heavy court docket, uncertainty of litigation and wanting to reach a peaceful, amicable resolution.”

On the other hand

The new collaborative method doesn’t work for all divorce attorneys, at least not yet.

“The challenge I see with collaborative divorce is that it seems ‘front-end loaded,’” Vital says. “You often need people with resources who are willing and able to pay for all those professionals (who work as a team on the divorce.)”

Veteran Nashville lawyer Rose Palermo, who is a proponent of mediation, also has some doubts about collaborative divorce.

“In concept it sounds great. But one of the problems, as I see it, is that you don’t go through formal discovery like you do in regular divorce. To me that means the other party would be able to flat out lie about things such as assets.

“I think collaborate divorce sounds unwieldy, but that’s just my opinion. It’s not just two lawyers trying to work it out. They bring in life coaches, therapists and financial experts. When you start adding the costs of all that together it could cost you a whole lot more than if you just had two lawyers working on it. If you can’t settle it, then go to court.

“Of course, the collaborators are professionals and nice people. I just have a problem with assuming everyone’s going to go into the divorce process with good faith. That’s just not always the case.

“But again, it does sound good in concept,’’ Palermo says.

“And I think, like with the growth of mediation, collaborative divorce could evolve over time as a practice. I’m not sure most people can afford it if it just goes on and on. Several people have come to me (with complaints) after being in the collaborative process. It’s just too new for me to recommend.’’

A “better way to divorce”

Kittrell says the beauty of collaborative divorce is that all of the parties are working toward the same goal.

“The whole purpose of the attorneys, even though we’re looking after our client’s best interest, is to get an agreement,” Kittrell explains.

That’s in stark contrast to traditional divorce, involving opposing lawyers with very different agendas.

“Things like – ‘if you don’t like it, we’ll see you in court tomorrow’ – that’s thrown off the table in collaborative divorce,” she adds.

In addition to collaborative lawyers, Wegryn’s dream team includes divorce coaches, financial specialists and child and mental health specialists.

Clients meet with the specialists and pick their own team of professionals to work with.

A written agreement is signed by both parties and their attorneys, where everyone agrees to work together to resolve their issues without going to court.

“It is a lot easier having both people on the same page,” financial specialist Sharon Jennings explains.

“My job is to find financial solutions and come up with options. When you can sit down in the same room and come to an agreement it helps everybody, particularly when children are involved.”

Another plus: financial advisor Bill Morris says there are no financial shell games in collaborative divorce.

All financial assets are required to be placed on the table.

“The real difference is you’re not taking a positional attitude as you go through the assets,” Morris says.

“You’re looking at both clients, not one. You’re taking a financially neutral position, finding out where all of the assets are and coming up with different ways to divide them.”

Emily Heird is a licensed professional counselor and a mental health associate with ETCA.

“I’m a divorce coach in the collaborative process,” Heird explains.

“I help with the screenings and gather the history of the marriage. My role overall is facilitator of the process.”

As is the case with traditional divorce proceedings, collaborative divorce can also be difficult and painful,” Heird adds.

“What makes it easier is our clients have a lot more say over the marital dissolution.”

Even at that, she says there is no silver bullet when it comes to divorce.

“One of the most difficult parts of divorce is asking two people who no longer want to be married to each other to sit down in a room, problem solve and work toward a resolution.”

Still, Wegryn says the collaborative process tries to take as much of the venom as possible out of the divorce process.

“No threats are made and we try and take away a lot of the fear, but that doesn’t mean it’s easy,” she says.

Mike Blackerby is a freelance writer living in East Tennessee. Linda Bryant is a journalist working out of Nashville.