Sunday, August 1, 2010

Can We Switch from Litigation to Collaborative Law?

Sometimes, a Collaborative-trained lawyer will file a family law case and start it as a regular litigation matter. After a little work has been done on it, the other side may hire a Collaborative attorney and want to convert the case into a Collaborative case. Some people question whether that is possible. The short answer is "Yes", we can switch processes in mid-stream. Another relevant question, however, is whether that is advisable.

Initially, the change is fairly easy to accomplish mechanically. Just like in any other case, the parties would need to commit to the Collaborative process, including the attorney withdrawal provision, and sign a formal participation agreement. The parties would then file (in Texas) the notice of Collaborative proceeding with the court.

Why would you want to do this? For any and all of the reasons often discussed: having a less-stressful environment, letting the parties control the timing and outcome of the process, privacy, the opportunity for creative solutions, etc.

A slightly more difficult question is when you should make the change. The best answer is probably as early as possible, before damage is done by tactics, testimony and other means. Switching early leaves more options open.

One approach which is a very bad idea (in my opinion), is to postpone the switch until some temporary orders are entered using the traditional litigation approach. An attorney who proposes that is clearly not fully convinced of the value and success of the Collaborative process. Such an approach limits options and poisons the relationship between the parties. It would make the Collaborative process much more difficult because the attorneys and parties get used to treating each other the way they do in litigation. It also necessarily includes decision making on important issues, financial and personal, without the benefit of having the neutral financial and communication specialists involved.

The difference between that approach and the decision to switch generally is that when both sides say they want to use Collaborative Law from the outset, but one side wants to get some initial orders made under the litigation approach, that one side is clearly undermining the Collaborative approach and expecting the court to favor them in some way that the other side would never agree to. Once a party is taken advantage of like that, it will be hard to be effective in Collaborative Law.

The Bottom Line: It's OK to switch from litigation to Collaborative Law, and it's not hard to do. But, the sooner the switch, the better.


Jonathan Kales said...

Why, in your experience, does a spouse start litigation when he/she prefers a collaborative approach? Is it the other spouse's unwillingness to participate in the divorce, in any capacity, at least initially, and litigation allows the issue to be forced?

Dick Price said...

There can be many reasons for that happening. Someone who prefers Collaborative may have chosen a non-Collaborative attorney. The other spouse may have initially refused to do Collaborative. As you suggest, the other spouse may not want the divorce and won't do anything to advance the process. Or there could be many other possible reasons. For many of the reasons, it may be possible to convert the case to Collaborative, and hopefully that will happen if both parties are truly on board with it.