1. What is Collaborative Law and how does it work?
It is a relatively new process to resolve family law matters out of court. The parties and their attorneys in a family law case agree to work together or “collaborate” to create a customized solution to a family law matter, usually a divorce. The parties and attorneys agree from the beginning to not go to court to resolve issues. Instead, they have a series of short meetings where information is gathered and shared, issues are analyzed and solutions are created. The parties share expenses by jointly hiring experts, as needed. The sessions are private and the result usually is an agreement that meets the special needs of the parties while preserving a relationship between the parties. The parties control the timing and terms of the agreement.
Team Work: We normally use a team of professionals to work with our clients. We bring in a neutral mental health professional (MHP) who acts as a communications facilitator. In plain English, we bring in a counselor who helps the parties be able to get along, listen and communicate effectively so that we can reach agreements. We also use a neutral financial professional (FP) who manages the information on the financial issues. The FP directs and supervises the parties in gathering and organizing the financial records needed to work out financial issues.
Hidden Benefit: The neutral professionals save the clients money by working effectively with them off-line, without the attorneys present, to do a lot of the preliminary work. It’s much cheaper to pay one neutral in place of two attorneys to do the preliminary work.
Withdrawal: In the event that the Collaborative process breaks down and an agreement cannot be reached, the attorneys and neutrals are required to withdraw. The parties then have 30 days to hire new counsel before they can go to court. This withdrawal requirement, and the additional cost involved for the parties, is a great incentive for the parties to work hard and not give up at the first signs of difficulty. It is one of the biggest reasons for the success of the process.
A copy of a standard Participation Agreement, which is signed by both parties and acknowledged by the attorneys, is available on request.
2. Who makes the decisions?
In a Collaborative case, the parties make their own decisions. They do not rely on a judge or on standardized formulas or schedules, as in a litigated case.
3. How is it different from mediation?
The main differences are in the use of teams of professionals, the timing, the focus on interests and needs in Collaboration rather than arbitrary guidelines, and the role of the threat of judicial intervention.
Mediation involves a neutral third party who helps the parties try to work out a settlement. In Texas, mediation typically occurs after there have been one or more court dates and after there has been extensive work done in discovery, the process of gathering and exchanging information and records. In many cases, mediation occurs immediately before trial. Discussions in mediation often include the implicit or explicit threat to “let the Judge decide” or “I’ll just take it to court” if the other party will not agree with what one party wants.
In contrast, in Collaborative Law cases, the parties work directly with both attorneys, the neutral professionals and each other. Discussions begin immediately and the parties themselves decide how and when they will resolve the issues. At the outset, the parties agree not to go to court, which eliminates the threats that occur in mediation. Usually, a neutral third party is not involved in the negotiations, although mediation can be used in appropriate cases. In Collaborative cases, the negotiations are usually interest-based, rather than positional bargaining. The parties determine their underlying needs and abilities and create custom solutions themselves, rather than relying on a judge to decide.
4. Why do the attorneys have to withdraw if the process fails?
It is a fundamental element of the process. That requirement ensures that both parties will sincerely work in good faith to settle the case. The cost and inconvenience of hiring new attorneys is a huge incentive for the parties to stay with the process and reach an agreement. The loss of business from failure is also an incentive for the attorneys and other professionals to work until an agreement is created.
5. How can I be sure that we will find out all the information and that what we get is accurate?
Just as in litigated cases, there is no guarantee that each party will be completely honest, but there are some protections.
The participation agreement signed by the parties at the outset is a commitment to honesty. No such agreement is signed in a traditional litigated family law case. The agreement also creates the basis for enforcement action or damages if dishonesty is uncovered. In many Collaborative divorce cases, a joint sworn inventory and appraisement is signed by the parties certifying the extent and value of the parties’ property. The atmosphere in a Collaborative case is more conducive to honesty because of the civility and reduced animosity that generally exist due to the process used. The parties may not be as tempted to cheat or shade the truth when they have feel like they have some control of the process.
In the event that dishonesty occurs and is detected after an agreement is reached, the victim would have the same remedies available to a victim of dishonesty in a regular litigated case.
6. Will it save time or money?
Collaborative Law cases are not cheap and are not necessarily fast. But, neither are litigated cases. However, there are some possibilities for savings in Collaborative cases.
Since Collaborative cases are usually handled on an hourly basis, and each case is different, there is no way to guarantee savings, but there is a great potential for savings if the parties work hard and responsibly. Like about any other family law matter, the amount of time involved, and therefore the cost, depends on how the parties act as well as the difficulty of the issues.
The parties have more control over the time commitment in a Collaborative case than in a litigated case and can avoid the time consumed in court appearances and in the heavy paperwork that often appears in litigated cases. In litigation, there are usually multiple court appearances and voluminous document discovery and review in Discovery. In Collaborative cases, there are multiple meetings, but many meetings are between the parties and just the MHP or FP, which is much less expensive than having both attorneys present. The FP typically manages the financial document production and organization for both parties together, and it is much more limited than in litigation.
If a case is unsuccessful and reaches an impasse, there will be considerable expense since both parties will have to hire new attorneys. The knowledge of that is part of the motivation and commitment of the parties to reach a settlement.
7. How much does it cost?
There is no way to tell how much a Collaborative case will cost. It depends on many factors, especially the complexity of the issues and the abilities and interest of the parties in reaching agreements. There is usually no way to predict how much a traditional litigated family law case will cost either.
8. How long does it take to finish a collaborative divorce?
That is mostly up to the parties. There is a mandatory 60-day waiting period for a Texas divorce. An agreement can be approved by the court at any time after that. In other family law cases, there may not be a minimum time, so the length of time involved depends on how well the parties and attorneys negotiate.
9. How does it protect my privacy?
Court hearings in a litigated case take place in an open, public court. The Collaborative case is negotiated in private meetings. In litigated cases, a great deal of personal and financial information regularly finds its way into the public divorce records kept on file at the courthouse. In Collaborative cases, the information is discussed and shared in private. The parties control what information, if any, is put in public records.
10. Will it work in a custody case?
Yes, it can. Many custody cases are resolved with a Collaborative approach, with the benefit that the positive qualities of each parent are not lost and both parties focus on the best interests of the children. Relationships are not destroyed along the way as the parties work out a settlement by working together instead of against each other. Sometimes we bring in a neutral child specialist, or we just use the MHP in other cases, to help the parties sort through the issues and work out solutions that fit their needs. That is generally much better than having a standard formula imposed by a court.
11. What if we need an expert to appraise property or value a business?
One of the great benefits of the Collaborative approach is that joint experts are hired by the parties, instead of having a battle of experts hired by each side. The parties save money using just one expert.
12. What if we can’t reach an agreement?
In a very small number of Collaborative cases, an agreement cannot be fully reached. Sometimes a partial agreement can be reached and the remaining issues can be resolved by mediation, arbitration or going to court, if all else fails. The bottom line is that if the parties reach an impasse and cannot agree, the attorneys will withdraw and the parties will go to court to settle all remaining issues. Because of the cost, animosity and time delays, that is not usually an attractive option.
13. What is my attorney’s role?
Your attorney has a major role in advising and guiding you. Your attorney will usually not speak for you, which often happens in litigated cases. Instead, each attorney meets and consults with their client before, after and between joint meetings and can take an active during meetings to help guide the parties. There is regular and constructive representation, focusing on the attainment of a client’s most important goals, throughout the process.