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How these law students help costs and acrimony for divorcing couples (podcast with transcript)

By Stephanie Francis Ward

February 2, 2015, 9:00 am CST

In the wake of divorce, many families find themselves emotionally and financially devastated. If you're in the heat of a legal battle, it's easy to go too far and create acrimony with your ex-spouse which can poison any chance at a cordial future relationship–and drain both sides' bank accounts to pay for attorney fees. But what if if didn't have to be that way?

Podcast Transcript

Stephanie Francis Ward: Family lawyers aren’t cheap. Many people can’t afford them, and those who can sometimes spend much more than they anticipated, particularly when emotions take over. Are there ways to cut costs while still helping people resolve their legal issues fairly and ethically? I’m Stephanie Francis Ward, and on today’s Asked and Answered podcast, we’re discussing an initiative in Colorado which aims to do exactly that.

Joining me are two guests, Rebecca Love Kourlis, a retired Colorado Supreme Court justice who now is Director of the Institute for the Advancement of the American Legal System. It is sponsoring the Honoring Families Initiative. Also joining us is the former director of the Honoring Families Initiative, Melinda Taylor. She now works as the Executive Director of the University of Denver’s Resource Center for Separating and Divorcing Families.

Becky, can you explain to us the goals of the Honoring Families Initiative?

Rebecca Love Kourlis: The Honoring Families Initiative, Stephanie, sits within—as you said—IAALS, which is sort of a think/do tank at the University of Denver. We have a number of initiatives. This specific ones works to establish more dignified and fair processes for the resolution of divorce and child custody cases, with a particular focus on what’s best for children and the sustainability of families in reconfigured fashion.

Stephanie Francis Ward: OK. And Becky, can you tell us when did this idea come to you? I know you have child court experience as well, before you were on the appellate courts there in Colorado. How did you get this idea?

Rebecca Love Kourlis: The idea, I do not take complete credit for. It is the amalgam of the thinking of a number of people over time; but my initial recognition that the system as it is currently structured does not serve families very well hit me over the head when I was sitting on the trial court bench in family cases.

Stephanie Francis Ward: I have the impression with the organization. So graduate students in counseling and financial planning with law students work together to help families with their family law matters. Is that correct?

Rebecca Love Kourlis: So if I may answer that initially by putting some context around that question, Stephanie, and then I think I’ll turn it over to Melinda because she can really tell you the functioning. The context is that the Resource Center for Separating and Divorcing Families is a model that we developed here at IAALS. We then essentially gave it to the University of Denver and helped to create it on campus. We ourselves stepped back and we are now evaluating it in an effort to determine what works and what doesn’t work, and then to think about how we might best replicate it.

So IAALS is sort of the mother ship from which this came in a model fashion; the result of a steering committee’s deliberations over 18 months of a multidisciplinary steering committee. We then put it in place on campus, and it opened in September of 2013. So with that context, why don’t you talk a little bit about what students are part of the process, how they’re supervised, and what their disciplines are.

Melinda Taylor: Sure, I would be happy to. So the operations at the center use students from the Graduate School of Psychology, the Graduate School of Social Work, and Sturm College of Law here at the University of Denver. They are supervised by a psychologist supervisor, master’s in social work supervisor, and an attorney mediator supervisor. And collectively, they provide legal education, dispute resolution, counseling and therapeutic services to separating and divorcing families.

We also have a financial planner partner onboard. She’s a very well established financial planner who opted to join us in providing sliding scale fee services to families who needed financial consultation and education.

Stephanie Francis Ward: Melinda, can you give us an example of how a party would come to the organization and how they’d work with the counseling arm, and then work with the law students, as well?

Melinda Taylor: Sure. So clients learn about us from our local court self-help centers, internet searches, word of mouth, local mental health providers, and community partners such as schools and Social Services. They oftentimes will look at our program on the internet. We have an intake from on the internet that they can complete, and it’s submitted electronically to the center. We do require that both parents have minor children, that they are willing to work together under a dispute resolution model, that they have no extensive and ongoing history of mental health, addiction, or domestic violence issues.

Once we’ve received the intake form for both parents, we schedule what we call an interview. It’s an hour interview with each parent, and it’s conducted by a mental health student and a law student working together as a team. Once that interview is conducted for each parent, the students confer with the supervisor to see if we would be a good fit, if you will, for the family. And at that time, we identify what services we think, based on our expertise on experience, we think the family would benefit from.

Again, our goal is to really empower the family to take their own lead on this transition period. So what we’re doing is helping facilitate that by identifying services that may be of benefit for them. The services could range from legal education, dispute resolution, we also do legal drafting on the mediated agreements. We provide child interviews for children so we can tell parents how their kids are transitioning and doing. We do child therapy. We do adult and family therapy.

And then we do something that’s really innovative: It’s called co-parent coaching. We have a lot of parents that come into us and they kind of view this as a sprint, rather than a marathon, if you will. And we spend time telling them that the better prepared they are, the better prepared they are to communicate with one another, the more successful their mediated agreement and their transition will be. So we offer a service called co-parent coaching. It can be one to three services that work with both parents together on facilitating healthy and constructive communication for not only the mediation, but for their post divorce lives, as well.

Stephanie Francis Ward: Sometimes I think with a family law issue, you might have one party who’s really mad and say, “I just want to make them pay; they’re going to pay for what they did to me.” Could you see a situation like that, where your counselors will maybe get that person to hear that? Because I think good family law attorneys tell clients quite a bit: do you want to pay your spouse, or do you want to pay me? It’s a choice. You know, “Do you want to pay for your kids’ college education, or would you rather keep on fighting about this?”

Could you see with your organization—I mean, does that come up sometimes and are the students who are working as counselors maybe getting a party to a more realistic, mindful position in the matter at hand?

Melinda Taylor: Yes. As I said, our model at the center is that separation or divorce is a marathon, not a sprint. And it’s interesting. Once parents decide to work with us, quite often we tell them: you can be really angry with one another, but what we need for you to agree upon is that you will work together for the benefit of yourselves and your children post divorce. So once we’ve kind of given that message, most of our parents hear it. And it’s very, very subjective; it just depends on each family and each parent as to how long they will need to prepare—whether it’s therapeutically, whether it’s financial planning—to have a successful mediation at the center if that’s the service that they would like.

Stephanie Francis Ward: Do you think that point of telling them that it’s a marathon, not a sprint, is that perhaps what gets the parties to truly hear that? Because I think oftentimes, that’s something you have to tell your client ten or more times.

Melinda Taylor: Yes, we do a lot of that. We spend a lot of time talking with parents. At the onset of every meeting with our parents, we ask how the children are. Our focus is really on “let’s keep the focus on your children and promoting their health and happiness, and in turn, that will help you transition.” I’ve heard many parents finally—it takes a couple of sessions, but then I hear many parents say that this holistic approach, if you will, is less complex, it’s less intimidating, and they know it’s better for themselves and their children.

And to that end, it’s interesting; we often continue to provide therapeutic services for parents and children even after their divorce has been finalized. So the legal case may be closed, but they continue to work with the center on transition.

Stephanie Francis Ward: And when I was reading about the organization, I was curious: Would you take parties where they’ve had two or three cases on the file before they came to you? Because oftentimes for traditional family law attorneys, that’s a red flag.

Melinda Taylor: First of all, we do handle cases where one or both parents have attorneys; that doesn’t preclude them from participating in services at the center, and we’ve had some of those cases. We also will help what we call post decree parties. So if they’ve gone through a couple of attorneys, if they’ve gone through the formal divorce project but they’re coming back to the court for a dispute regarding their parenting plan, or child support, or something of that nature, we will go ahead and accept those referrals and work with those post decree parents on dispute resolution services. Does that answer your question?

Stephanie Francis Ward: What I mean is they’ve gone through two or three attorneys. So they’ve fired someone or they got fired by the lawyer.

Melinda Taylor: It’s interesting; we haven’t had that come up, yet. We ask on our intake form and during our interview process if one or both parents have sought legal counsel, if they’ve worked with an attorney. And I think almost all of our parents have indicated—some may have gotten some legal advice or started out with an attorney, but they couldn’t continue to afford the attorney’s services and they found out about us.

Stephanie Francis Ward: I’m thinking as we’re talking that in traditional family law matters, there often are counselors involved but they may not speak with the lawyers directly unless it was counseling that was ordered by the court, or maybe if they’re serving as a witness of some sort. And it seems like with your organization, the counselors and the people who are doing the lawyering, they do talk on a regular basis; they’re a part of a team. Is that correct?

Melinda Taylor: Yes. The therapeutic services that we provide are separate from our dispute resolution services and arrangements with the court. We have a confidentiality agreement with the parents, and would only speak to quote-unquote lawyers in a case if requested and approved by the parents.

That being said, because we are a holistic approach and we have a law student working with a mental health student to provide case management and mediation on the case, and then if the parents or their children are involved in counseling services, we would have a separate mental health student provide that student, we do discuss, generally speaking, how the family is doing; are they staying on course, are there any unique factors that we need to respond to? And we do get the parents’ permission to do that.

Stephanie Francis Ward: I was curious. You mentioned at your organization there is a sliding fee. About what would the average cost of a divorce with a custody issue with your organization be, versus someone who privately retained counsel be?

Melinda Taylor: This is kind of a tough one because the cost varies by location and factors in the divorce case. So for example, nationally I’ve come across figures ranging from $5,000 to $15,000 as the average cost for a divorce case with attorneys. As you said, at the center we operate on a sliding scale fee. The minimum amount is $25.00 an hour, for the maximum amount: $95.00 an hour. And it really depends on the services that the parents select. Generally speaking, I could say that the cost would range between $500 to $1,500 for a family, and that would include co-parent coaching, mediation, legal drafting, and one or two support groups for parents and children.

Stephanie Francis Ward: Wow. How do you guys take payment? Do you take credit cards? Cash, obviously; how does that work?

Melinda Taylor: Yep. We do cash, checks, and credit cards. And it’s interesting; one observation I’ve noticed that parents really appreciate and they have voiced to me is the opportunity to come to the center for kind of one-stop shopping, if you will. It saves them from additional time away from work and appointments for them and their children. So they can come to the center, they can pay for the services at each visit. Or if they can’t pay for services at the time, we will work out a payment plan with them.

Stephanie Francis Ward: I don’t think anybody would quibble with the fact that that fee you mentioned is very, very affordable, compared to even an inexpensive divorce. Which brings me to the next question. I think that sometimes, unfortunately, in family law there are lawyers that get the parties worked up so that it puts more money in their pocket. I think that happens, unfortunately. So given that—and there’s always been a lot of discussions about how family law, there are some problems that need to change. Does the profession really want it to change? Becky, maybe you’d like to take that question.

Rebecca Love Kourlis: My view, Stephanie, is that indeed the profession recognizes two things, the first of which is that the adversary system is not necessarily the best approach for a number of their clients. And accordingly, they have for years been using collaborative divorce or adversary options, alternative dispute resolution in a variety of formats. So I start from the premise that I think the family lawyers around the country are concerned about superimposing the adversary system on the process of helping their clients work through divorce or separation in a number of instances.

In some instances, it’s the only way to do it and there are significant issues of fact and there is real polarity, and you’ve just got to go that way. But in a host of other instances, it’s not necessarily the most constructive approach. So that’s premise number one.

Premise number two is that I think everybody recognizes the growing number of self represented litigants in family cases around the country. The numbers are not definitive, but they range anywhere from the high 60 percentile into 80 percentile of family cases in which one or both parties are self represented. So as attorneys, we have to acknowledge that there is a huge gap in the services that they are able to provide. People who need help, people who need navigators, if nothing else, in assisting them through the system.

So I think there is a growing recognition that there has to be alternative methods of helping those people. And we have not gotten opposition from the Bar in any sense at all; quite the contrary. Lawyers have been willing to help us and volunteer to help us work through issues, or develop forms, or whatever it may be. So we have encountered an enormous amount of good will with the recognition that the people whom we serve need us.

Stephanie Francis Ward: Have you had a situation where the parties came in, it seemed to be going well, it was going to be an uncontested divorce, let’s say. And one party just goes off the rails for whatever reason. Have you had that situation, and if so, how did you deal with it?

Melinda Taylor: Yes, we have had some families—I think they would be in the minority—who have come to the center. We think it would be a good fit; the parents are willing to work with us. And then as time moves on, one parent or both parents become increasingly frustrated, or there’s a particularly difficult financial issue; perhaps valuation of a business. And in that case, we work with parents to talk about how we can transition them to seeking attorney counsel and getting some legal advice.

We have had a few parents for whom they decided to take a breather. They’ve gone away from the center, they’re just sitting, if you will, on their separation. And then they will come back a few months later to pursue continuation and mediation at the center. So it really is based on an individual basis.

Stephanie Francis Ward: Have you had parties—let’s say it was a divorce, and they went to your center and they decided: I don’t think we want to get divorced, we can work this out?

Melinda Taylor: Yes, we have. We classify those usually as our “mixed agenda” couples, where one parent is convinced that he or she is done with the marriage; the other parent is not willing to accept that. So we do something that we call discernment therapy, that stems from a program out of the University of Minnesota, where it works with both parents not so much on the divorce, but how to come to a consensual decision of what the future will look like. And in those cases, we have had, surprisingly, quite a few families who have opted to try reunification. At that point, we then help counsel them and help them find an appropriate reunification counselor or therapist in the Denver metro area.

Stephanie Francis Ward: When parties do reach an agreement for their divorce, then do you take the filing to the court there? How does that work?

Melinda Taylor: The administrative office for the courts in Colorado and the metro area chief judges of our local courts were involved in the planning and implementation of the center. So they have been extremely supportive. And this has allowed the center to operate under a Memorandum of Understanding with the Judicial Department that allows us to work with parents to file a motion for the appointment of a retired judge to preside over their non contested final orders at the center.

The supreme court will issue an order appointing the judge, and then we schedule a final court ordered hearing at the center approximately once a month. It is a formal court hearing that is officially recorded and provided to the court after the case is closed. And we do believe that we are the first non-court organization in the country to provide parents with the opportunity to have their final hearing heard outside a traditional courtroom. In the agreement, the Memorandum of Understanding, I also have access to the judicial case management system.

And in Colorado, we e-file all of our domestic cases. So parents are required to file their petition for dissolution at the court. But after that, all documentation that needs to go to the court can be e-filed by us directly to the court.

Stephanie Francis Ward: And where you have—and I realized you’re supervised by a lawyer, but has there ever been a concern where it’s law students involved, they might miss something? Like splitting a pension or something like that; a complicated issue in family law where they are law students. Is there ever a concern to that, and if so, what’s the group’s response?

Melinda Taylor: Yes. Our protocol requires that at the center we always have a supervisor present at the mediation session. So for example, if it’s a parenting plan mediation, it’s OK for us; we will have an MSW or a psychologist supervisor in supervising that mediation with the law student-mental health team, so if there are issues that are missed, the supervisor can step in and help facilitate that with the students and the parents.

In the financial related mediations, the Attorney Mediator Supervisor is always present, and will again step in, if needed, to make sure that the students have covered everything. They spend a lot of time prior to the mediation prepping with the supervisor. They have a checklist of issues based on that family’s unique needs that need to be addressed. So they really do a lot of, as part of the education experience, up front preparation before the mediation.

Stephanie Francis Ward: Approximately how many family law matters has your organization resolved since it started offering services?

Melinda Taylor: We actually just completed our first year evaluation, and that indicated that we had 146 individuals or 83 families who went through the intake interview process. As we talked about earlier, some of those families were referred out because they needed an attorney consultation, or there was significant domestic violence or mental health issues. We also work with many families who are not technically court involved, but are in the process of separation. We have quite a few never married parents who have not gone through the process at all, who are in the process of separating and would like our assistance during that transition period.

And then we have our families who elect to use us for legal dispute resolution and court orders at the hearing. It’s important to note in the first year evaluation, over 90 percent of those families reached full agreement on parenting time and decision making, and financial issues and mediation. And we started holding court hearings at the center in January of 2014, and to date we’ve had approximately 30, or a little 30, Final Orders hearings with a retired judge.

Stephanie Francis Ward: I know you’ve mentioned you can’t work with families—or you choose not to—if there’s domestic violence involved or significant mental health issues. Thinking about that, it seems like those might be the people who need the help the most. Do you see your organization or groups like yours having the ability and resources to work with some of the more messy family law issues down the line, if the parties want to give it a shot?

Melinda Taylor: Yes. It’s interesting; since we opened, we have found quite a few families who are begging for services. They have nowhere else to go, and they have issues involving domestic violence or mental health. So when we confront those cases, we have a very rigorous screening that we use for domestic violence. It’s called the Matrix. And depending on the results of that Matrix screening tool, we may decide to work with a family. It’s somewhat unique; it doesn’t happen all the time. But we’ve found in the cases where we are working with a family who has had some history—not ongoing, but some history of domestic violence or mental health issues, that they are the ones who are most appreciative of the work that we’re doing with them.

Stephanie Francis Ward: I see. Interesting. And Becky, do you see other states offering a program like yours in the future? Is that something the group is working on?

Rebecca Love Kourlis: Yes. We are, at present, trying to figure out how we might replicate this model, either on a university campus or in a community setting. So we are in the business and strategic-planning phase of that, now that we have the first-year evaluation in hand and we have a sense of what works and what services families need and take advantage of. We are trying to figure out what a more generic model that could be adopted in other settings would look like; what sort of funding would be necessary to support those models; and what sort of staffing would be necessary. So we’re deeply involved in all of those questions.

Stephanie Francis Ward: All right. And that is everything I have for today. Is there anything either of you would like to add to our discussion?

Rebecca Love Kourlis: I guess I would just like to say, Stephanie, that the whole focus of this is to try to develop alternatives that better serve families and their children so that they can move through a divorce or separation and still be, to some extent, intact; talking to each other and communicating and hearing goals and time in a way that is appropriate, given their change in circumstances. We have great hope that this will be a model that can be available to great numbers of people, irrespective of income levels and irrespective of geography. Our goal, in case this wasn’t clear, we have no intent of ever making this into for profit.

At best, we would like it to be a circumstance where it would self support to some extent. But our goal is to help people navigate the intricacies of the legal aspects of divorce and separation, the psychological aspects of being in a family that is required to reorganize, the financial implications, all with a sense that they can do this. That they can get through it and they can make sure that their kids do as well as possible, and that they, themselves, do as well as possible and it need not be a circumstance that devastates the family from a variety of perspectives.

So we have high hopes. We think that the model is something that can indeed serve great numbers of people, and we would like to think that we’re on the road to that.

Stephanie Francis Ward: All right. Thank you both very much for your time. And thank you so much for joining us. I’m Stephanie Francis Ward, and this is the ABA Journal Podcast, Asked and Answered.

[End of Transcript]

Updated on Feb. 5 to add the transcript.

In the wake of divorce, many families find themselves emotionally and financially devastated. If you’re in the heat of a legal battle, it’s easy to go too far and create acrimony with your ex-spouse which can poison any chance at a cordial future relationship–and drain both sides’ bank accounts to pay for attorney fees. But what if if didn’t have to be that way? In this month’s Asked and Answered, moderator Stephanie Francis Ward speaks with Rebecca Love Kourlis and Melinda Taylor, who hope to change the way people approach the divorce process through the Honoring Families Initiative.

Read more about this initiative and its pilot project, the Resource Center for Separating and Divorcing Families at University of Denver, in this month’s ABA Journal magazine: “Model program brings holistic solutions to divorce”