An Interview With Professor Andrew Schepard About IAALS’ Denver Center: Bridging the Implementation Gap Between ADR Services and Divorcing and Separating Families
We interviewed Professor Andrew Schepard*, who, together with Professor Marsha Kline Pruett** and Justice Rebecca Love Kourlis***, authored “If We Build It, They Might Come: Bridging the Implementation Gap Between ADR Services and Separating and Divorcing Families,” which will be published in volume 24 of the Harvard Negotiation Law Review.
The article focuses on the creation of a model interdisciplinary center in Denver, Colorado, the focus of which was to empirically demonstrate that alternative dispute resolution should be the primary method of dispute resolution for families going through a divorce or separation instead of a lesser-used “alternative” to the more frequently employed courthouse litigation model. The Institute for the Advancement of the American Legal System (IAALS) at the University of Denver created the center to serve two specific goals: (1) to empirically demonstrate that the Center’s ADR service model promoted the well-being of parents and children and (2) to determine if this model would be economically sustainable.
The Center assigned interdisciplinary teams of attorneys, mental health practitioners and financial planners to provide legal information, assessment, case management, individual and group therapy, mediation, and agreement drafting services for the clients. The process culminated in a hearing at the Center, rather than at the courthouse, for judicial approval of the parents’ mediated agreement leading to a divorce. Significantly, this was the first time in American history that parties were able to obtain a judicially approved divorce without ever entering a courthouse.
The Center operated in two settings. For two years, it was a program of the University of Denver, located on campus. Students from the Law School, School of Social Work and Psychology Department plus financial planners provided services under supervision. Subsequently, the Center was moved to a community-based location and services were provided by professionals.
A systematic and rigorous evaluation of the Center, which was built into the model, demonstrated that it promoted the well-being of both parents and their children. Parents who participated in the Center showed statistically significant levels of reduced acrimony, improved parental-child communication and improved emotional health of both the parents and their children, during one of the most stressful times in their lives. Participation in Center services also substantially reduced the time and expense associated with litigation.
However, notwithstanding the high quality of services provided, and the Center’s aggressive outreach and marketing efforts, the Center’s model did not prove to be economically sustainable because not enough families took advantage of the services offered. A major focus of the article is what it labels as the Implementation Gap, which is defined as the difference between the quality of the alternative dispute resolution (ADR) services provided by the Center or its providers and the number of families that used those services.
The article concludes that the Implementation Gap should be bridged by concrete measures designed to educate the legal community and larger public about (1) the value and priority of ADR to separating and divorcing families and (2) the cost-effectiveness of using ADR rather than the generally more expensive and more time-consuming process of litigation.
Why was it so important to create the Denver Center, and what are the major benefits to divorcing or separating families to utilizing interdisciplinary ADR services rather than the more generally accepted courthouse litigation approach?
The Center was established to create a forum for interdisciplinary professionals to help separating and divorcing families address the emotional, economic and legal challenges they face holistically. We aimed to create a “proof of concept” that coordinated ADR oriented services delivered by interdisciplinary professionals that would both benefit parents and children and give them a viable alternative to courtroom litigation to resolve their problems.
The Center experience established that the benefits of ADR as compared to litigation are considerable and that ADR better fits the needs of most separating and divorcing families. The benefits of ADR include (1) reducing emotional and economic stress for parents and children, (2) promoting responsible parental conflict management and associated risks to children, (3) facilitating a child’s relationship with both parents following divorce and separation, (4) encouraging family self-determination and thus compliance with results and plans, and (5) increasing access to justice.
What were the socio-economic characteristics of the client families who utilized the Center’s services?
Mostly college educated. Only 8 percent had high school diploma/GED only. About three-quarters had a college degree, with one-third having a graduate degree.
When the Center operated in the community-based model, about one-third of the parents reported individual annual incomes of $100K or above. The rest reported lower incomes.
There was some ethnic diversity in the parent population, but about 80 percent of parents were Caucasian.
Is the Center model useful in all divorce or separation cases, or are there certain situations where it may not be the best method of resolution?
The dispute resolution world posits “fitting the forum to the fuss” as a central goal. The creation of the Center is not an occasion for closing the family court system. There is plenty for both to do. The key goal is to figure out what kinds of disputes should be handled at the Center and what kinds should be tracked to resolution in the court system.
A major feature of the Center services model was a sophisticated, state-of-the-art screening and intake system designed to distinguish those families who were suitable for Center services and those who were not. We were looking for parents to enroll in Center services (both of whom had to consent in order to participate) who had an interest in cooperating with the other parent about their children without a lengthy history of litigation between them. We tried to screen out parents who had an extensive history of issues with mental health, serious substance abuse, domestic violence, or child abuse or neglect. Parents who present with such issues need more intensive mental health or other services than the Center was able to provide.
The article states that 70-80 percent of divorce or separation cases involve at least one self-represented litigant and that there were 4.5 million estimated new domestic relations cases in 2016. What do you attribute to the large increase in self-representation, particularly in the middle class? Why is the ADR model a better choice for self-represented parties?
The increase in self-represented divorce and separation litigants among middle-class Americans is a fundamental change in the assumptions that underlie the legal system and a challenge to our ideals of justice. In a nutshell, the substantive law and procedure of separation and divorce are complicated and created on the assumption that both parents will be represented by lawyers. That assumption is simply not correct. More and more parents navigate a complex world alone, or with research from the internet.
IAALS conducted a study of self-represented litigants that found that most self-represented litigants undergoing separation and divorce want legal representation but feel that they cannot afford it. They believe that paying rent and for medical care is a more important priority. It is no secret that middle-class wages have stagnated in the American economy. While wage increases have stagnated, I suspect that that the costs of legal services have risen, creating an affordability gap.
In addition, there is also a problem with how lawyers charge fees for separation and divorce. Ethics rules prohibit contingent fees in divorce cases. I suspect that most lawyers follow the full-service model of representation in separation and divorce. They ask for a retainer, charge hourly rates against the retainer amount, exhaust the retainer, and then ask the client to replenish it. Retainer amounts are beyond the ability of middle-class clients to pay. Many self-represented litigants express frustration when they do not see progress with their cases because of the delays inherent in the legal process, and they ask themselves whether an additional retainer is “worth it” as compared to other pressing needs. The result is that increasing numbers of litigants address the complex legal system of divorce and separation on their own, without the assistance of an attorney.
ADR is a more cost-effective option for most middle-class families in this economic climate. Most parents and children simply cannot afford the extended emotional and economic stress of litigation. In mediation, participants get legal information from a single source (the mediator, who does not represent anyone) rather than having to pay two lawyers, one for each parent. Perhaps more importantly, ADR promotes parental problem-solving and a focus on children. ADR gives parents a way to reorganize their family without having a judge impose solutions on them.
What did the built-in comprehensive evaluation process demonstrate with regard to how participating parents rated the overall impact of the Center services for themselves, their children and their families as a whole?
Evaluation of the quality of Center services was very, very positive. The evaluators found statistically significant decreases in depression, anxiety and stress levels by parents, as well as decreased levels of acrimony. Parents also showed an increased ability to co-parent, improved communication skills, confidence in co-parenting, positive changes in emotional expectations of children, and improved adaptive behaviors in children. Over 80 percent of parents rated the impact of Center services on themselves, their children and their families as “good” (as compared to “neutral” or “bad”). Only a tiny percentage of parents (less than 3.5 percent) rated the impact of the Center as “bad.” While we don’t have similar ratings for families going through the litigation process, I doubt that the positive ratings would be anywhere near as high.
What was the average number of hours that were expended by Center personnel per family? What was the average cost per family (including personnel and overhead costs)?
Center staff spent an average of 40 hours working with families (including both scheduled appointments and administrative, drafting and other functions). Families attended an average of about 18 service appointments.
What outreach and marketing tools were used to try to attract families to the Center?
The Center conducted a sophisticated outreach campaign to attract new families at the rate that would make it financially self-sufficient (eight families per month was the target). The campaign included a website, search engine optimization, bus tail advertising, spots on Colorado Public Radio, a social media presence, a blog and a video, presentations to referral sources such as lawyers, judges, mental health clinicians, health care providers, schools, unions, and large employers. We also explored possible inclusion in bundled employee health benefit programs.
What are the main reasons for parents not enrolling for Center services?
Some parents did, but not enough to create a financially sustainable business model. We enrolled about half the number of parents that we needed to sustain the Center. Why parents didn’t enroll is a complicated subject. Each non-enrolling family had different reasons. Often, one parent wanted to enroll in Center services, but the other didn’t agree — for example, because he or she did not want the divorce to go forward at that time. We need consent of both parents for ADR, but it takes only one parent to initiate litigation.
Some parents didn’t enroll because they were not familiar with ADR and were wary of proceeding without their own lawyer. Some didn’t enroll because family members and advisors did not support enrollment. Finally, some thought the cost of the package services that the Center offered was too high.
Were the parents who inquired about the Center services and those who became Center clients generally aware of the costs entailed in litigation, including attorneys’ fees?
I would say no. Potential Center families had no way to compare the cost of the package services offered by the Center with the costs of litigation, which depend to a large extent on how long a litigation goes on. There are no studies or data that create a meaningful financial comparison. And there are no studies of the comparative emotional wear and tear of litigation on parents and children as compared to ADR. Litigants often complain that they have to take time off from work and wait around family court all day for a scheduled appearance only to have the matter postponed. They did not have that problem at the Center.
Are there any other reasons as to why the Center was not economically sustainable?
The Center had good support from a number of opinion leaders in the community, but not enough. I was disappointed, for example, that lawyers did not refer more potential clients to the Center. Only 3 percent of referrals were from lawyers, which included referrals from Denver University Legal Services. Lawyers spoke well of the Center when the concept was presented to them. Referrals did not follow. The Center got most of its potential client families from internet research by a parent.
The article states that even though the quality of ADR services at the Center was high and the evaluation of services by parents was good, and there are significant benefits to parents and children from utilizing ADR services, the usage of Center services was too low to sustain these services. What cultural and other changes does the article conclude are necessary in order to bridge the Implementation Gap so that utilization of ADR services is more prevalent?
As a cultural matter, I don’t think our society takes the impact of divorce and separation on affected parents and children as seriously as it should. We still treat divorce and separation as a private matter for resolution by the parties themselves. It is more accurately described as a public health problem which creates risks for children, parents, employers and the community.
ADR needs to be front and center as a response to the public health problems created by separation and divorce. We need to make a number of recommendations to get client families in the ADR door. They include a public health-type information campaign aimed at parents, with support from opinion leaders in the bar, the bench and from the community. We think all states should require families to try ADR before litigating unless there is domestic violence or some other reason to exempt a particular family from ADR. We propose changes in legal ethics rules to encourage interdisciplinary practice and unbundled practice by lawyers, to define the mission of the family lawyer as encouraging problem-solving advice to clients, and by creating a duty on the lawyer to advise parents about how to minimize harm to a child. We recommend that law schools make ADR a centerpiece of their family law curriculums. Finally, we recommend that creative options like social impact bonds be explored for funding ADR projects like the Center.
In conclusion, what are the lessons learned and the takeaways gleaned from the Center experience?
Working on the Denver Center was a wonderful professional experience for me. I could not ask for better people to work with. It was a pleasure watching parents and children being aided through difficult life transitions with sensitivity and grace. I felt like I was helping the future of family law come into being.
What did we learn?
First, we established that ADR, professionally organized and delivered, produces great benefits for parents and children. The Center data confirms earlier studies that the time has come to move ADR into a central place in the dispute resolution process for separation and divorce. Litigation is still a necessity for some cases, but the great bulk can be resolved through ADR.
Second, we need to reach more families to participate in ADR. Coordinated cultural and legal change is required to bridge the Implementation Gap. Lawyers and judges should play a central role in creating the necessary change, as they are the gatekeepers for public opinion.
Third, bridging the Implementation Gap requires a long-term commitment and financing from judicial, legal and community leadership. Funding for ADR programs should not be seen as a competition for court budgets, but as investments in strengthening families and community. A great family court system should be the goal of every community, and it should include a well-funded, visible ADR option for parents and children.
Finally, those who are interested in promoting the change from litigation to ADR for separating and divorcing families need to be in it for the long haul. It will not come quickly or easily. We have made progress and can make more if we work together for the benefit of the families we serve.
*Andrew Schepard is the Sidney and Walter Siben Distinguished Professor of Family Law at the Maurice A. Deane School of Law at Hofstra University, the founding Director of Hofstra Law’s Center for Children, Families and the Law, and the author of numerous articles, books and case studies on family law and alternative dispute resolution. He served as a consultant to the Institute for the Advancement of the American Legal System Honoring Families Initiative for the development of its interdisciplinary Resource Center for Separating and Divorcing Families at the University of Denver, whose model center in Denver is the subject of this article.
**Marsha Kline Pruett, who has a Ph.D. in clinical/community psychology and master’s degrees in legal studies and psychological services, is the Maconda Brown O’Connor Professor at Smith College School for Social Work. She has been in practice for over 25 years and has published numerous articles, books and curricula on alternate dispute resolution, among other divorce-related topics concerning parents and their children. She served as a consultant to the Institute for the Advancement of the American Legal System Honoring Families Initiative for the development of its interdisciplinary Resource Center for Separating and Divorcing Families at the University of Denver.
***Rebecca Love Kourlis served Colorado’s judiciary for nearly two decades, as a trial court judge and then as a justice for the Colorado Supreme Court. In January of 2006, she resigned from the court and established the Institute for the Advancement of the American Legal System (IAALS), where serves as Executive Director.