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Collaborative divorce use lagging in Indiana

January 13, 2016
shelemey-lea-mug Shelemey

Lea Shelemey learned about collaborative divorce a dozen years ago when she heard what lawyers were doing in her native Alberta, Canada. She’s been sold ever since, but she wishes more lawyers were trained in the process and more clients were willing to take the option.

“It means everybody walks away and everybody is so happy,” the Valparaiso family law attorney said. “I would love to see it pick up.

“I love handling those kinds of cases because I really like to see how people can resolve their differences and walk away without the horrible, bad feeling you get when you’re battling and waging war,” she said. “Divorce requires that we try not to harm, that we try to heal.”

But Shelemey said in northwest Indiana, few attorneys have been trained in the collaborative divorce process that she describes as a paradigm shift. In this practice, divorcing spouses and their respective lawyers agree at the outset that going to court is not an option. And if a party breaches that agreement, attorneys for both parties must terminate their representations.

That’s a big incentive to work together. But it’s also a prospect that scares some clients.

harmon-kathy-mug Harmon

“That is a big turn-off for people,” said Mallor Grodner LLP partner Katherine A. Harmon of Indianapolis, who’s trained in the process. “If we get hung up on who gets possession of the dog, we’re going to start over and have to have litigation on everything.”

Nevertheless, collaborative divorce attorneys said the process typically yields better outcomes and can save clients tremendous sums of money compared with traditional divorces. The process may bring in trained professionals from other disciplines such as finance and mental health to help resolve issues and guide the parties to settlement.

Couples often agree on mutual experts for valuation and custody matters, for instance, and discovery usually is much faster and less contested. Along with a pledge to stay out of court, the approach stresses an honest exchange of information by spouses and aims for settlement that aligns with the highest priorities of each spouse.

Lawyers say the process has proven its worth in Europe and elsewhere, but after a few years pushing for more training and greater acceptance, some Indiana lawyers sense a decline in momentum.

“I don’t think it’s taken off to the degree they thought it would,” said Timothy Hambidge, a partner in the Evansville firm of Foster O’Daniel Hambidge & Lynch LLP. He trained in the collaborative method a few years back and has done just one collaborative divorce. It was a multimillion-dollar deal, and parties used an agreed-upon financial planner. “It worked well. All the parties came to the table with the same spreadsheet, so to speak.”

Hambidge said in a sense, though, collaborative divorce is close to what his experience is in most divorces cases in the southwest Indiana bar, which has developed a reputation for collegiality and civility. “We try to get these divorces done with no fuss, no muss,” he said. “There is no victory. If you go to court, you’ve already lost.”

reichert-melanie-mug Reichert

Melanie Reichert is immediate past-president of the Central Indiana Association of Collaborative Professionals, which counts about 120 members, including about 90 lawyers. She said training for lawyers seems to have peaked, but greater numbers of professionals in finance and mental health, and child specialists are seeking training so they can assist in the process. Reichert said about 10 percent of her divorce cases go through the collaborative process, but she’d like to see that number increase to 50 or 60 percent. Because most divorces are settled through mediation before couples feel compelled to resort to court, Reichert said she foresees more collaborative divorces in the future, though it may take awhile.

“In the Midwest, we don’t like change very much,” she said. “It took a long time for domestic relations mediation to catch on in Indiana.” Now, “mediation is the norm and most people don’t get to see the inside of a courtroom.”

collaborative-factbox.gifReichert said collaborative divorces typically take two to four months compared with six to 12 months for the average traditional divorce. She believes people committed to the collaborative process also can spend less money than even a case that settles in mediation. She provided some anecdotal evidence to make that case.

A while back, Reichert said three divorce clients came in around the same time, all with similar levels of complexity, whether the issues were financial, child-related or other matters that would take some untangling. One case involved allegations of an extramarital affair, another involved a relocation, and the third contained allegations of substance abuse.

All three cases were ultimately resolved by agreement. Two cases were handled collaboratively, settled within 60 days, and those clients paid about $3,800 to $4,400 in legal fees, plus the costs of experts. The third case went the traditional route, lasted 18 months and racked up legal fees in excess of $30,000, plus numerous additional fees for other experts.

Reichert credits the collaborative process for providing a disincentive for parties to polarize. But that may run counter to ingrained motivations for some lawyers.

“My experience talking about it with other attorneys, they’re not all convinced you’re still zealously representing your client” by using the collaborative method, Shelemey said. She said other lawyers may be disinclined to choose the process because litigating may be more lucrative.

Shelemey believes clients “are much better served if they were not told what to do by their attorneys, but if they were asked, ‘What are your goals? What about the children?’”

holly-harvey-mug Harvey

“I would say in general the attorneys I know who are trained in this process, they have a different mindset and approach to litigation to begin with,” said Bloomington attorney Holly Harvey.

“There’s less stress involved for the attorneys and also for the parties,” she said. Clients put their cards on the table and are committed to complete disclosure. “It can still be very emotional.”

Nevertheless, Harvey said collaborative divorce fits the way she likes to practice, and she encourages other family law practitioners to be trained in the method that she believes is best for helping clients and their children move on with their lives.

“It’s one more option to resolve what is a very hard time in their lives,” she said. “It’s absolutely the most humane way. It didn’t take a lot to change my mind about it.”

Still, there are some instances where collaborative divorce is less likely to succeed. “Clients have to be invested in the process and willing to get the case settled,” Harmon said. “I don’t see this being an option if the parties are hell-bent on having their pound of flesh.”

Harmon also has received some cases where couples tried the collaborative route but couldn’t work out a settlement. Such scenarios are unlikely to de-escalate conflict.

She’s uncertain whether collaborative divorces will become more common, but she hopes so. “This is one of those where, let’s come back in five years and see,” she said.•

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