Can We Start in Litigation and Switch to Collaborative Law?

Occasionally, I will have a client or attorney ask me if we can start out a divorce case in litigation, have a temporary hearing and then switch over to Collaborative Law. This usually comes up where one party really wants to use Collaborative Law and the other isn't really sold on it. The "unsold" one will sometimes propose a compromise of using the process, but only after a temporary hearing, where that party expects to get his or her way at the expense of the other party.

I would say that there is nothing in the Texas law that forbids that change in approaches(though some Collaborative lawyers won't even consider doing it), but that I would advise against it. I haven't ever done a case that way and I don't think I would want to. Here are some some problems I would foresee:

1. The parties may like the peaceful approach of the Collaborative Law process, but there's a reduced chance of success because of a lack of a full commitment by at least one of the parties.

2. Taking this approach, the parties would give up the following advantages of the Collaborative process:

Control-- At a temporary hearing, control is given over to the Judge or the "standard" solutions. The parties are not fully able to negotiate equally.

Privacy--Court papers are public records and if there is an actual hearing, it is in open court.

Creativity--Temporary hearings normally involve reliance on standard solutions and orders instead of spending hours developing unique orders to meet the specific circumstances of the case.

Preserving important relationships--At a hearing or even in negotiations, parties can easily become angry about what is said and done.

Encouraging full input by both parties--Temporary hearings discourage full input by both parties. Judges and attorneys in temporary orders hearings or discussions mostly rely on the standard answers and pay little attention to the unique aspects of a case or the non-standard approaches that may be proposed by a party.

Interest-based negotiating--Temporary hearings generally involve positional bargaining and usually have very little to do with the parties' real needs or any unusual requests.

Protection from an overbearing or controling spouse--The parties most likely are at court because one party senses she or he has an advantage and wants to capitalize on it. Threats and demands are easily made in negotiations and there is neither a framework nor trained professionals to end and deal with such behavior, as would have been the case with the Collaborative approach.

3. Obviously, at least one party is not truly committed to Collaborative Law problem-solving or decision-making because they want to rely on arbitrary, standard solutions. Without the full commitment to Collaborative Law, there is little chance of success. If both parties understood and were committed to Collaborative Law, they would have been using it.

Caveat: I view the situation differently if both parties start out in litigation without an expectation of using Collaborative Law and then later both decide they want to try Collaborative because one or both may have changed attorneys or maybe they are tired of fighting. If they are both fully informed and committed to using the Collaborative process, I would consider making the change. Nothing in the law would prohibit it. I view that as a fundamentally different situation from one where a party obviously wants to gain the upper hand through litigation before agreeing to Collaborate on the remaining issues. This is something I would consider on a case-by-case basis.

If you are interested in using Collaborative Law at any step of your family law case process, I recommend that you immediately get in touch with your attorney and discuss whether it is advisable. Make sure you are dealing with an attorney who is at least fully trained (at least a 2 day training program) and preferably one who is experienced in Collaborative Law.