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In addition to the many benefits of mediation and collaboration, many potential clients are discovering that with access to the courts limited, these may be the quickest ways to resolve disputes. Like so many professionals, mediators and collaborative attorneys have spent the last several months learning how best to adapt the work they do to the digital realm. We have been really excited about some of the innovative ways we’ve learned to use technology to take mediation and collaboration to the next level. In today’s blog post, we want to share some of the ways we’ve discovered that Zoom mediation and collaborative sessions can recreate face-to-face meetings and in some ways even surpass it.

Breakout Rooms

Zoom enables “breakout rooms” which allow participants from a conference call to easily disperse into smaller groups outside of the main conversation. For example, you could take a moment to discuss something one on one with your attorney, then return to the other people on the call. It’s the equivalent of stepping into another room down the hall in our office, but translated pretty seamlessly into the virtual space. 

Screen Sharing

Screen sharing allows us to share what we’re seeing with other participants in a Zoom call. With the right programs, it’s like having a dry erase board that we can all see. This can help us keep conversations on track and remember the points that have been made. We can also review documents like agreements together in real time.

Flexibility of Scheduling

We’ve found that scheduling mediation sessions is much easier when we do it virtually. Participants do not have to worry about commute times because they can join the call from anywhere, as long as they are connected to the internet. This ability also often makes participants more comfortable as they can experience the mediation from the comfort of their own homes.

A tip from our team: Sometimes breaking mediation into several sessions rather than going at it all day is a good idea. This is an emotional process and we don’t want you to get burned out. The flexibility of scheduling provided by virtual mediation makes this a lot easier.

Are you curious about mediation?

If you’re facing a dispute, such as a divorce, mediation or collaboration might be the right path for reaching a resolution. If you’re interested in learning more about how our team is mediating in the age of coronavirus, please don’t hesitate to contact us today. You can reach Irwin Kuhn at (615) 321-5659. We can’t wait to hear from you to discuss your needs and our practice!

More and more people who come to our office after deciding their marriage has reached its end want to avoid the additional financial and emotional cost of a traditional divorce. There are good options.  If you’ve learned about collaborative divorce and think it might be a good approach for you and your soon-to-be-ex, make sure you approach them in a way that allows them to really appreciate the things that make collaborative divorce different. An initial consultation will include suggestions on how to talk to your spouse about a collaborative divorce. 

Do your research.

Become as knowledgeable as possible about what you are proposing before you bring it up. If your spouse is completely new to the idea of a collaborative divorce, he or she will likely have many questions. We will provide you with resources to help you talk to your husband or wife. Our website has lots of information about the collaborative process; it is ok to let your spouse see it!

Schedule an Information Session.  

A collaborative lawyer does not represent both sides and can’t give legal advice to a party who may be on the other side of a case. We can, however, give both sides information about various approaches to divorce, including collaborative, without giving legal advice or hearing confidential information. Feel free to schedule a joint informational session with your spouse, if that would be helpful.

Let Us Invite Your Spouse to Collaborate.

Some clients think it is helpful if we send a letter or email to their spouse to explain what the collaborative approach is and how it might be helpful in their situation. Let us know if that would be a good idea in your case. 

Explain the financial advantages.

Courts and litigation proceedings are expensive. Make sure your spouse clearly understands that a collaborative divorce can save you both time and money.

Tell your spouse what attracts you to collaborative divorce.

Is it the chance that it gives you an opportunity to talk things out in a comfortable, respectful environment? Is it because you want a more efficient problem-solving approach to your divorce? Are you looking for a process that addresses the unique needs and interests of your family? Do you want to avoid a process that makes it harder to co-parent after the divorce? Is it because it protects your privacy and you want to stay out of court? Let your spouse know what appeals to you, personally, about choosing collaborative divorce over traditional divorce and why it might work best for them.

Listen to their thoughts and opinions. Understand that you have to both agree to it in order for it to happen.

A collaborative divorce can’t work if both sides aren’t willing to collaborate. Understand that no matter how badly you want to divorce this way, it can only happen if your spouse agrees. We will help you think about how to talk to your husband or wife. 

For more information about collaborative divorce or to get started, call our offices at (615) 321-5659. Attorney Irwin Kuhn has extensive experience with collaborative divorce and is eager to work with you.

Mediation is almost always required before trial in family law cases in Tennessee. For good reason, while litigation often leaves one winner and one loser, mediation focuses on finding win-win solutions and, with hope, helps preserve relationships and lay the groundwork for future co-parenting efforts. Mediation is also a lot less expensive than trials. It’s important to go into mediation with an open mind and a willingness to be flexible both about the issues in dispute and the way to resolve them—doing so leads to better outcomes for both parties.

1. Accommodates Changing Circumstances

Flexibility allows you to get closer to a win-win solution. As you and the other party discuss different aspects of your case, you may find that you’re willing to compromise in certain areas and concede to the other party’s wishes in other areas. Staying rigid encourages friction, while flexibility keeps you open to other solutions.

2. Saves Time

When both parties and their attorneys remain flexible about the mediation process, it can move much more smoothly. A skilled mediator will adjust their techniques to suit the unique needs of the parties involved, and following the mediator’s recommendations can often lead to a more peaceful resolution in less time. While many attorneys are most comfortable with shuttle mediation when both parties are kept in separate rooms and the mediator communicates with each party separately, it’s important to be open to other styles of mediation. If you and the other party are willing to sit down at a table and calmly discuss some of the issues at hand, you may wrap up some of the less difficult issues more quickly. This frees up more time to hash out tough issues like custody, spousal support, and the division of assets.

3. Breaks Down Misconceptions

Many times, both parties bring their own misconceptions to mediation. You may think you know what the other party wants to get out of mediation; but until you have a clear discussion about it, you’re likely working off of your own assumptions. The same is true for them. Mediation is a good chance to lay everything on the table and make sure you’re working with accurate information while making decisions.

4. Reaches a Mutually Beneficial Solution

In matters of family law, it’s essential to come to a decision that benefits everyone. Not only do your decisions impact your and your spouse or ex-spouse’s life, they affect your children. When you maintain your flexibility throughout mediation, you remain open to solutions that allow your children to maintain relationships with both parents, build secure bonds, and enjoy the benefits of a peaceful co-parenting relationship between their caregivers. Mediation can help people in a variety of legal situations, allowing individuals to protect their privacy and minimize time spent in the courtroom. To learn more about your legal options, contact Irwin Kuhn today.

DVKB Family Lawyer Irwin Kuhn and Nashville attorney Marlene Moses wrote this article outlining the steps of a hypothetical collaborative divorce. Collaborative divorce problem solving settlement approach to divorce. The article was originally published in the Nashville Bar Journal.

Download Article

Kevin Fuller, a top Texas divorce lawyer, discusses why collaborative divorce makes sense for people trying to preserve family businesses. Among the reasons:

• Negotiations are conducted in a private arena.
• Legal fees are used more efficiently.
• Settlement discussions can be scheduled to fit business needs rather than the court’s calendar.
• The collaborative process is less disruptive for the business’ staff.
• Results are often quicker.

Kevin’s full article is here: http://www.koonsfuller.com/dividing-the-family-business-without-destroying-it

Irwin Kuhn and Dot Dobbins are divorce and family lawyers who practice collaboratively at Dobbins Venick Kuhn & Byassee, PLLC.

Irwin Kuhn recently authored an article in the Nashville Tennessean concerning the divorce of former Senator Bill Frist and his wife Karyn. The Frist chose the collaborative divorce approach. Irwin Kuhn is a collaborative divorce lawyer in Nashville and commented on that choice.

Frists Work to Make Divorce Less Painful

(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.

A comparision of outcomes of mediations and going to court was the subject of a 12 year study by Dr. Robert Emery, director of the University of Virginia’s Center for Children, Families, and the Law. Here is a link to a summary of his findings: http://emeryondivorce.com/divorce_mediation_study.php. Dr. Emery found that in the group that mediated, the non-primary residential parent was more likely to spend more time with their children and have more frequent contact, in the long run. The primary residential parents graded the other parent as better parents than did the non-mediating group.

     Many Tennessee courts and attorneys by reflex insert parenting plan provisions prohibiting residential parents from allowing overnight visitation by “paramours” or “members of the opposite sex to whom they are not married”.

    The Court of Appeals for the western section of Tennessee recently struck down a local rule in Gibson County requiring similar language in all permanent parenting plans. Barker v. Chandler (September 18, 2009) was widely publicized because it struck application of the mandatory language to a mother and her same sex partner who are not allowed by Tennessee law to marry.

     The decision has wider implications for all parents who may be cohabitating or involved in other relationships without the benefit of marriage. The court noted that Tennessee statutes and court opinions require “that trial judges make decisions regarding residential parenting of children ‘upon the basis of the best interest of the child’”

     Trial courts in Tennessee following the western section’s opinion will almost certainly be allowed to consider a parent’s relationships and living arrangements, but those factors will have to be balanced with all others presented to the court when making parenting decisions in the best interests of the child.