MONTPELIER – After slugging it out in court for 15 years as litigator in family law, Nanci Smith has concluded that there's often a better way for couples to divorce than by re-enacting the War of the Roses. Now Smith is one of a number of Vermont lawyers who is offering alternatives to the traditional court-battle model of divorce. A former client characterizes her approach as "Zen," although Smith says she wouldn't call it Zen with a capital Z. She explains what she does as "trying to help people get through the divorce process, or civil union dissolution process, purposefully, mindfully and as humanely as possible, given the circumstances." Smith offers a separate family dispute resolution service – Law & Mediation Works – to clients that she believes will be best served by mediation. Although some people are well-suited to a non-adversarial divorce process, she says others are not. She notes that mediation is not appropriate in situations involving abuse or domestic violence: "There are cases where litigation is the only appropriate and safe avenue for people to go through." Practicing in Montpelier, Chelsea and Williston, Smith brings the skills of a mediator and the experience of a family court lawyer to Law & Mediation Works. When she serves as a neutral mediator, she doesn't provide legal advice to either party. In fact, she encourages clients to take the agreements they reach through mediation to their own lawyers before signing anything or submitting the agreements to the court. In mediation, clients typically identify issues, establish an agenda, do "homework" projects to ensure full disclosure of assets and work toward an agreement both feel is reasonable and can accept. One of the advantages of mediation is that the process is private and confidential. "It's a safe environment for people to raise difficult issues that they may not want to have aired in the public forum of a court," Smith observes. The dissolution of any state-sanctioned relationship such as marriage or a civil union must go through the court system; that means it will create a public record. But an agreement reached through mediation can be submitted to the court, minus accusations and counter-accusations, and the court will sign it, Smith explained. Another advantage of mediation, Smith said, is that it frees the partners from the court's schedule and allows them more control over the pace of moving through their separation. People who are divorcing are often at different stages in accepting the breakdown of the relationship, Smith observed, and allowing time to adapt to the transition makes it easier to reach an agreement. Sometimes, however, what people want is for their lawyer to be their gladiator or pit bull or their shark. "That's under-standable," Smith says, "because divorce is so overwhelming. It's as if there's a death in the family, except nobody is bringing food. It's a great loss. There's sadness and anger and regret and fear. You have to work through all of those emotions to get to acceptance, and hopefully, a sense of freedom at the end." If a couple can preserve some sense of decency, she says, they can move on "without ruining their relationship with somebody they once loved." Choosing the "warrior path," on the other hand, can lead to a process that is "indecent and cruel and vicious." Smith emphasized that there is now a continuum of options for how to go about uncoupling. Partners can choose litigation, mediation with a non-lawyer, mediation with a family court litigator – this is the Law & Mediation Works approach – or they can opt for collaborative law, a model just developing in Vermont. In the collaborative law process, both sides have lawyers, but the parties and the lawyers pledge to work out an agreement without using the threat of going to court as a bargaining chip. The process provides for four-way meetings and opportunities for lawyers to talk to the party on the other side of the dispute. If negotiations fail, both lawyers have to withdraw and the clients have to get new lawyers. That "creates an incentive for everybody to work out an agreement," Smith says. Smith calls the emerging alternatives for resolving family disputes exciting. "They encourage ownership of what you want your future to look like," she says.

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