How Can I Have a Peaceful Divorce?

If you really want to avoid fighting, as much as possible, in a divorce, here's what you need to do.
 
1.  Choose Collaborative Law.  If you get into traditional litigation, you may be drawn into more conflict.  Most of the time in litigation, you are placed in opposition to your spouse, rather than working with him/her to find win-win solutions. Most divorces will eventually get into mediation, but that's late in the process after a lot of damage has been done.

2.  Work with a team. In North Texas, almost all Collaborative divorces involve bringing in a neutral mental health professional and a neutral financial professional to work with the parties and attorneys.  The neutrals help the quality of the agreements on parenting and property division, as well as helping the process move along smoothly.

3.  Focus on goals, needs and interests of both parties.  Doing that helps make sure we deal with the most important matters and not get bogged down in minor issues. We can be a lot more efficient as well.

4.  Hire experienced Collaborative Law attorneys.  As a starter, you want to make sure the attorneys are trained in Collaborative Law.  Just as in most other matters, experience helps.  It's nice to have someone who has dealt with your issues before so look for a Collaborative attorney who has done it for a while.

5.  Be willing to try new approaches.  Don't get locked into what your family and friends tell you.  Be open to new ideas, especially if you have an experienced team of professionals helping you.

6. Understand that neither party can control the process alone.  You have to work together and you can get better results if you are willing to bend a little.  Usually, you have to give a little to get a little. It's easier to do if you're expecting it.

7.  Focus on improving your relationships.  In the Collaborative process, there is an emphasis on learning better communication skills, including listening.  If you and your spouse are able to work together, instead of against each other, that cooperation normally spills over into other parts of the post-divorce relationship.

To get a peaceful divorce, be willing to try new approaches and be willing to help from several directions.  You'll be glad you did.

Will it Work?

When you hear about some new idea that someone urges you to try out, one of your first questions may be, "Will it Work?". We don't want to waste time and money on something that doesn't stand a chance of working.

It may not work.
Anyone telling you about Collaborative Law will have to admit that there is a chance that the process won't work in some cases.  Sometimes it's because of the parties involved, other times it's the whole context of how the matter is happening.  Many times it can be because of outside forces, such as pressure from family members, time constraints or work issues. It can also make a difference it you choose to work with experienced versus inexperienced professionals.

Failure is rare.
The down side is that if the process is unsuccessful, the professionals have to withdraw and the there's added costs for the parties in getting new attorneys.  The good news is that failure is rare. 

Here are some common circumstances which sometimes unnecessarily scare people away from using Collaborative Law.

1.  One or both parties are mad. Actually, that's not unusual.  These are divorces after all. When we work with a full team, including the neutral mental health professional, communication improves greatly. People end up working together much better because they are surrounded by trained professionals who help them learn better communication skills.  That's an extra benefit of using the Collaborative process.

2. One doesn't trust the other party.  Again, that's common when people get divorced.  Again, trust is managed and greatly improved with the involvement of the neutral mental health professional, the neutral financial professional and two lawyers, all watching over everything. Part of the Participation Agreement everyone signs at the outset is an agreement to be open and honest.  We all also agree to correct any mistakes anyone finds.  This is about the most protected people can be in a negotiating process.

3. Someone believes the other party can "out-negotiate" them.  That's not even an issue because of having the team working together. Plus, we negotiate differently.  We don't use car-buying tactics.  We approach it differently by getting both parties to tell us their real goals, interests and needs. The negotiations focus on meeting the goals for both parties, rather than creating a "win-lose" scenario in which only one party is satisfied.

If you have any of these concerns, please talk with your attorney.  If you are meeting with a trained, experienced Collaborative attorney, your questions will be answered and your concerns laid to rest. While these are common issues, you really should have no problem entering into the process under these circumstances.

Why Do We All Meet in the Same Room? Part 2 -- Benefits

We recently discussed why having Collaborative meetings works when all the parties are in the room sitting around a common table.  It's a safe, effective and well-managed process.

This is in contrast to the typical litigation scenario where the attorneys speak for the clients or ask questions in court and the Judge makes rulings which may or may not actually help the parties work through this difficult process.

If you choose Collaborative Law, you will have the meetings in the same room, but there are a number of benefits from meeting directly together. Here are some to consider.

1.  The direct contact improves communication.  It's not filtered or interpreted by having the attorneys speak for you or against you.  You can speak for yourself, with support from your attorney and the other professionals.

2.  Everyone feels safe.  We don't wander off topic or allow ambushes.  We plan an agenda and stay with it.  If someone starts feeling anxious or upset, the Mental Health Professional (MHP) can step in and restore order.

3.  Both parties get heard.  A frequent complaint about Court is that one or both parties don't really get to say what they want to say in Court.  In Collaborative, the parties are encouraged to speak up.

4.  Collaborative is an efficient process.  You can get immediate answers and you can continue a discussion as long as is needed and then move on. You can directly address issues and get resolution.

5.  The process becomes real for everyone.  Direct participation, discussion and the ability to make decisions and agreements is in sharp contrast to litigation. There, technical legal issues sometime take over and dominate discussions, instead of having humans thinking and acting cooperatively to find their own solutions. In Collaborative cases, the parties are in control of their own outcomes.

If you are facing a divorce and are deciding how to proceed, please talk with a trained Collaborative lawyer who is experienced with Collaborative cases.  You can find out if Collaborative would be right for your case.

Why Do We All Meet in the Same Room?

One of the key elements of Collaborative Law is that we have meetings with both parties in the same room with both attorneys, plus the Mental Health Professional (MHP) and the Financial Professional (FP).  We encourage direct, respectful communication between the parties and the professionals.

Occasionally, some people are a little hesitant to commit to sitting next to, or even across the table from, the spouse they are splitting with.

This is another aspect of Collaborative Law that sounds difficult, but which normally works well and usually helps some wounds heal.

Why does it work?

1.  MHP: A big part of the MHP's role is to manage the discussions and help the two parties improve their communication skills so they can effectively participate in the process.  The MHP will redirect one or both parties, as needed, and can call a timeout if someone appears uncomfortable or some other problem shows up. Plus, the MHP discusses rules of conduct with the two parties to reinforce the expectations of their conduct.

2.  Attorneys:  In addition to the MHP, there are two specially-trained attorneys cooperating, helping lead the process and acting as role models for the parties.  The attorneys act very differently than they would in a litigated divorce.

3.  FP:  Having the neutral FP also adds to the security and integrity of the process.  Perceptions of a power imbalance between the parties can change because the FP can control the gathering and review of financial records, making sure that everything is produced and accurate.  The FP also takes a lot of the emotion out of the financial discussions.

4.  Planning:  With the Collaborative process, we initially determine the goals and needs for each party, then have meetings that are planned out and which follow set agendas.  Minutes are kept and there are discussions before and after the joint meetings, so the professionals keep on top of any issues and make sure that we all stay on track and don't wander off to upsetting unscheduled topics.

If you are considering using Collaborative Law to work out a divorce, don't worry about being in the same room with your spouse, even if one or both of you are upset.  The process is set up with many safeguards to make sure everyone is comfortable and safe  working together. Please talk with your attorney about any concerns you may have.

Why Some People Put Off Starting a Collaborative Divorce

By now, you may have figured out your marriage is not going to last. The questions are when and how the divorce will take place.

Some people, when faced with that situation, put off deciding.  Others will explore their options, but become paralyzed because there are too many choices.  Still others make quick decisions, but based on emotion or bad information.

Sometimes, people make an initial decision to file for divorce and then put off getting started.  If you find yourself in that position, let me address some misconceptions about Collaborative Divorce that may be stalling your momentum.

Here are some mistaken ideas people have about the Collaborative process, with an explanation about the reality for each.

1. They believe they need everything agreed before they start the process.  Wrong.  The Collaborative Divorce process is a method used to resolve disputes.  It's a great way to create solutions for sharing time with the kids or dividing the assets.  Collaborative is used to help the parties make decisions.

2. The parties don't get along. That's not unusual since they're getting divorced, but it doesn't keep them from working in the Collaborative process.  Having the neutral mental health professional work with both parties helps them learn to listen and communicate better as well as generally behave better in joint meetings.  Unless there are serious threats of violence, most behavior issues can be managed with two attorneys working with the therapist to keep order. It doesn't get better in court.

3.  They don't have all the information.  Actually, one of the early steps in the Collaborative Divorce process is to gather information.  The neutral financial professional takes charge of identifying, gathering, organizing and evaluating the financial information for the parties.  It is a very efficient process and it's great to have an extra set of expert eyes looking at the financial records.

4. Someone doesn't understand the process.  Any attorney trained in Collaborative Law will be happy to explain the process to a prospective client.  Some will do a free consultation on the process choices available to clients for divorce.  If you or your spouse  doesn't understand how Collaborative Law works, read some more in this Blog or on my web site, or you can check Collaborativedivorce.com.

5.   Some people don't think they need Collaborative lawyers because they can agree on everything on their own.  Sometimes it works, but more often, problems develop.  After all, if they could agree on everything, they wouldn't be getting a divorce.  What happens frequently is that one party decides how things should be done and then insists that the spouse go along with it.  That's not a good idea for the "non-deciding" spouse.  Collaborative Law gives a much better opportunity for both parties to participate in working out the agreement. A one-sided agreement won't work well in the long run.

If you find yourself thinking any of the statements above, please talk with a Collaborative Law attorney and help yourself.  You'll appreciate it afterwards.

Reality Testing -- What Do You Expect from a Collaborative Divorce?

If you are thinking about using Collaborative Law to get a divorce, it's a good idea to be aware of what you are expecting and it would be very helpful to your attorney if you discussed your expectations for the process.

Do you have great expectations about Collaborative Divorce?  Are you expecting any of the following?

1. It should be an easy experience.  "Easy" is a little like "fair" -- it's a subjective term and everyone sees it a little differently.  In general, you should keep in mind that this is still a divorce, with lots of emotions.  You are un-doing years of marriage and many decisions made over the years.  Divorce is rarely "easy", no matter which process is used.

2. It should be quick.  Again, "quick" or fast is relative.  No divorce with significant children's issues or substantial property can be quick.  There's a lot at stake and we all have to be careful to make sure the best results are obtained by everyone.

3.  It should be painless.  Again, this is a divorce.  Divorces are rarely painless.  We do have an advantage in Collaborative Divorces because we use a neutral therapist and a neutral financial who help the process run better and with less conflict than many litigated divorces.  There's bound to be some pain in ending the marriage, but it will generally be much less painful, just not quite painless.

4.  It should be cheap.  In a similar vein, a Collaborative Divorce is probably less expensive than  many or most litigated cases, but it can still cost a substantial amount.  The more complicated the
issues, the more meetings and preparation are required.  That also means the cost increases.  Keep in mind that complicated cases are definitely more expensive in litigation. Collaborative may not be cheap, but it's a wise expense.

5.  You should get everything you want.  That never happens, regardless of the process.  However, in Collaborative Divorces, we do make an effort to focus on what both sides want and need.  We do try to obtain as much of those results as possible. We probably come closer to getting what you want than would happen if we just left everything up to a Judge.

6. The lawyers will handle everything for you.  Not true.  We help you determine your goals and needs, and we help you prepare for meetings and discussions. We do some background work with the other professionals.  But, the parties have a major role throughout the process and they speak up directly in our meetings.  This is not a passive process for the clients. The result is that the parties have much more influence on the final outcome of the case.

7.  You should come out of the divorce with the same standard of living that you experienced while married.  That's not likely in most cases.  We usually still have the same size pie to be divided now into two households, rather than supporting just one.  We have to be realistic.  Fortunately, the neutral financial expert normally helps both parties plan their budgets for their post-divorce lives.  That usually helps reduce the impact on day-to-day living.

So why use Collaborative?  As you can see, Collaborative Divorce may not be exactly what you expect.  Still, people are choosing the process because it is very private, they have more control over the outcome, they can create unusual provisions, it's less stressful and they can maintain civil relationships with the co-parent of their children.

Bottom Line with Collaborative Divorce:  You can get a good result if you are patient and put in the effort.

Considering Reconciling?

This is kind of a chicken and egg situation.  Which came first, the possibility of reconciliation or choosing to use the Collaborative process?

Some people choose to try a Collaborative approach to divorce because they want to keep open the possibility of reconciling with their spouse.  Other people end up reconciling because they tried Collaborative Law and their experience working with their spouse gave a spark to the idea of possibly reconciling.

If reconciliation is a possible outcome you would consider or desire, here are some suggestions to help you get to that possibility.

• Don't burn bridges.  Be kind to your spouse and don't say or do mean things.Trying to wear down or wear out your spouse is a terrible strategy for reconciliation.

• Listen.  One of the big problems in many marriages is poor listening skills.  This would be a good time to learn to be an active listener and also to not interrupt your spouse.  Respond appropriately, but you need to hear out what your spouse is telling you.

• Forgive.  Don't hold grudges.  There are plenty of reasons to be upset with your spouse, and for your spouse to be upset with you, but you don't have to be upset.  Be mature and forgive your spouse.  You will undoubtedly need forgiveness yourself, so be willing to overlook some things and forget about past issues.

• Admit mistakes.   But try to focus on the future.  Don't waste time arguing over past mistakes and slights.  Admit and move on.

• Get professional help. That means, see a counselor.  I'm not a therapist and most lawyers aren't.  Please get help from a licensed counselor who works with couples.  There's no quick cure for marital problems and there are no reliable self-help programs.  You need a professional and you need to be willing to make changes.  If either spouse refuses to go to counseling because "I don't have a problem", reconciliation won't work.  Both parties need to be willing to fully commit to getting proper help.

There's no guarantee that using Collaborative Law will lead to reconciliation, but  the Collaborative approach sure establishes an environment much more conducive to reconciliation than litigation does.  Good luck!

What Happens at the 1st Joint Meeting?

Most of the first Joint Meetings in Collaborative cases follow the same pattern.  The purpose of the meeting is to make sure everyone starts out with the same understandings of the process, including the steps we follow and the obligations of each of the participants. 

At the 1st Joint Meeting, we don't do much case-specific work or make decisions on how to divide things up.  We wait until the proper time to do that.

Instead, we are building a foundation for the process to work in the case. It's essential, even though it can be a little boring! We all have to make the best of it.  The process gets more interesting later on.

Here's what generally happens:

• Introductions.  We usually introduce each of the professionals and each party.  We agree to use first names with each other so the process can be less formal.

•  Discuss the process. We usually go through the Roadmap to Resolution which outlines each step we follow in the process.  Normally, the neutral mental health professional goes over the Expectations of Conduct with the parties.  We want to be sure everyone really understands what we will be doing and how it works.

• Sign the Participation Agreement.  This is a relatively long document that is the underlying contract between the parties.  It sets out in great detail the rights and responsibilities of the each participant, including the attorneys and neutral professionals.  It tells how the process works. The Agreement also has a section that commits the parties to maintain the status quo on the finances and property involved in the case, similar to the Injunction typically issued in a litigated divorce. 

        We want everyone to understand the process, and commit to following the rules.

• Develop the goals for each party.   The parties work with their attorneys before the meeting and then explain the goals and needs they want to meet by the end of the process.  We set up targets so we can meet the specific needs of each party, instead of just asking for some arbitrary percentage of property or standard terms relating to the children.

• Deal with immediate concerns.  If there are issues that need to be resolved temporarily or immediately, we work together to help the parties.  Typically, these may be interim arrangements relating to the children, finances or housing.

• Schedule future meetings and homework.  We try to schedule at least a couple of Joint Meetings and some meetings with the parties to work with each of the neutral professionals before the next Joint Meeting.  Homework typically involves gathering financial records and information about the children.

If you need anything to be done at the first meeting that is not included above, please discuss that with your Collaborative attorney.

What to Expect: How Easy is Collaborative Law?

Some people think that if you choose to work out your divorce issues and you agree to not go to court, you have elected to use a nice, simple, easy process.  While the process is generally nicer than litigation and is intended to at preserve family relationships (assuming you want or need to), it is not necessarily simple or easy.

If you are considering using Collaborative Law, we want you to have realistic expectations.  The preparation and meetings are often difficult and time consuming.  Here are some things to keep in mind if you begin the Collaborative process.

1.  There will be a number of meetings.  People often try to cut back on the meetings, but I can assure you that the attorneys and other professionals do not set up unnecessary meetings.  Issues tend to be handled better if we work on them in joint meetings rather than by email or phone calls between attorneys.  We always try to limit the meetings, but please work with the professionals if we say we need another meeting.

2.  Express what you want. Don't expect your attorney to speak for you.  This is not the process where you attorney writes pleadings and makes arguments for you.  We want you to speak up for yourself.  Your attorney will help you prepare.

3.  Each of you must listen to the other side.  In court, it often feels like whoever speaks first or loudest is the one the judge will pay attention to.  In Collaborative, we want both of you to speak and be heard by the other.

4.  Be patient.  This may take a while.  Even though going to court would probably take 9 to 18 months to reach resolution, people in Collaborative sometimes have unrealistic expectations that the process can be resolved in 2 to 3 meeting over a couple of months.  Some minimalist cases can be done that quickly, but most will take 3 or 4 months and some will take more.

5.  You must be an active participant.  You have to gather information, plan, be creative and suggest solutions.  There will be meetings to attend and you may have to study different options.  There will be times to meet with your attorney and times to meet with the other professionals.  You must speak your mind and tell us what you like or don't like.

6.  Be willing to grow.  You may need to expand your horizons.  Don't settle for the what the law will give you.  Ask for more and ask for different solutions.  We are talking about a major life event, so look into the future.

7.  Expect some discomfort.  You will hear some things you don't like.  You will be confronted with difficult issues and will have to compromise where you may not want to.  Instead of giving up or giving in, you can learn to seek other alternatives and find new solutions that can work for everyone.  It's just not the situation where you choose from a menu of possibilities.  Sometimes you will need to create a new menu and that may be hard.  But, it will be worthwhile.

Having realistic expectations will ensure that the Collaborative process is successful and less stressful for you.  Good luck!

Discussing Why You Want to Use Collaborative Law

There's an important discussion that needs to take place, but which is often overlooked, at the start of a Collaborative Law case.  People choose to use the process for many different reasons, sometimes being influenced by more than one reason.

Here are some of the reasons why people choose to use Collaborative.  They are looking for:

• A civil, less stressful, resolution of difficult issues.  Instead of "warfare" between spouses, they can choose to negotiate as adults to find acceptable ways to meet the needs of each party.  
• An inexpensive process to resolve disputes.  
• A fast process to resolve disputes.
• A fair process.
• A process where the parties can control the expenses.
• Privacy.
• A process where the parties make the decisions and control the outcome.
•  A process where the parties control the timing, instead of leaving it to a court or arbitrary rules.
• A process  that preserves important family relationships.

These are all reasons that different people have expressed in different cases.  They are all legitimate values, but you should know that:

• Collaborative Law is not "cheap".  Cheap is a relative term.  In general, Collaborative Law can be less expensive than litigation because we don't do formal discovery or depositions, we don't use competing experts and we don't have numerous court appearances.  That's money that's saved.  On the other hand, there are two attorneys, usually a neutral mental health professional and a neutral financial professional and multiple meetings. We do gain some efficiency by having the other two professionals do a lot of the work on parenting issues and gathering financial information and creating budgets without having the attorneys sit in on the preliminary work.  My opinion is that, on balance, Collaborative can be cheaper than litigation, especially compared to hotly contested cases.

• Collaborative Law is not inherently "fast", unless both parties are in agreement as to how fast they want to go.  The general rule is that the process can move along only as fast as the slower party is willing to go. One party cannot rush the other party in Collaborative.

What to Do
At the start of your Collaborative case, please take some time out to discuss with your Collaborative lawyer why you want to use the process.  Explain your expectations.  If you have unrealistic expectations, it is better to discover that early on so adjustments can be made or a new course chosen.  The attorneys and other professionals can adjust their approaches if they know from the beginning what is really important to you about the process.

The result will be greater comfort for you and a greater chance for a successful outcome!

Is Collaborative Law Faster than Litigation?

Is Collaborative Law faster?  Usually, BUT it's not necessarily "fast".

The Collaborative process is deliberate.  We follow a Roadmap that is logical and efficient.

• At our first joint meeting, we usually explain the process, make sure everyone understands it and then get a firm commitment from everyone to follow the process.  We also discuss the goals and expectations of each party.

• The next step is gathering information.  Financial information is gathered by the neutral financial professional (FP).  Information about children's issues, if any, is gathered by the neutral mental health professional (MHP).

• After we have the information to work with, we develop options to consider.  

• The final step is to discuss and negotiate to an agreement.

Other considerations.  

• We always have to remember that we can't go faster than the slower party is willing to go.  There are different levels of emotional readiness for divorce.  It is fairly common for one party to have been thinking and planning for the divorce for a long time.  That party is over the marriage and often is very anxious to get the divorce over with.  On the other hand, the other party may be taken by surprise and may need quite a while to adjust if the first spouse kept everything a secret.

• Sometimes, some preparation is needed to transition out of a marriage.  In most Collaborative cases, the parties prepare budgets to help them make financial decisions.  That takes some time.  A house may need to be sold, refinanced or transferred to one party. It may take a while to divide certain assets.  With children, there may need to be planning about how and when to tell them or how to manage the sharing of the parenting post-divorce.  One party may need to find a job and/or get spousal support for some period of time.

• There may be other reasons to delay final action on the divorce, including health, family obligations, job obligations, housing issues, etc.  Usually things can be wrapped up fairly quickly, but it could take a few months.  For someone very anxious to get the divorce over with, that can seem like a lifetime.

Comparison to litigation.  In litigation, there are numerous things that can delay progress.  Overall, the parties are looking at 9 months or more to reach a final trial in a contested case.  This is because the parties typically have to deal with:

• Temporary hearings
• Other hearings
• Discovery
• Preparation of an Inventory and Appraisement
• Scheduling order from the Court
• Mediation deadline just before trial
• Trial date 9 months or more away.

What sometimes happens is one party has been thinking about the divorce for a long time,  without telling the other party.  When the divorce gets started, the first party is immediately ready for the process to be over because he/she has thought it over and planned everything for months.  The other party is surprised and unprepared and needs time to collect his/her thoughts and then begin making plans.

In a Collaborative case, the party who plans ahead feels like the process is moving very slowly.  The other party feels the opposite.  Gradually, the second party gets up to speed, but it may take a while.  

Even if it does seem slow at first, the Collaborative process will almost always move much faster than a litigated divorce.
 

Is Collaborative Law Cheaper than Litigation?

Is Collaborative Law cheaper?  Probably.

Is Collaborative Law cheap?  Not necessarily, but it's all relative.

The Players.  In Texas, each party hires their own attorney.  Then, the attorneys select a neutral mental health professional (MHP) and a neutral financial professional (FP) to work with both parties.  That sounds like a lot of expense, but keep in mind that the MHP and FP do a lot of independent work in the case at a cost of less than half the charge of just one of the attorneys.

The Process.  We will have a series of joint meetings to  discuss and review facts and issues in the case. (We follow a Roadmap that is a step by step process of setting goals, gathering information, generating options and coming to agreements.)  At the joint meetings, we usually have both attorneys and both other professionals, unless we are just talking about non-financial children's issues.  Then we would have the attorneys and MHP.

Efficiencies. The Collaborative process operates very efficiently regarding creating a parenting plan and gathering and organizing financial records.  We have "offline" meetings with just the MHP and the parties on parenting issues and just the FP and the parties to do the preliminary financial work.

In a litigated case, the attorney typically would be meeting with their client to gather information and formulate a plan on parenting issues.  The MHP is much less expensive and probably more qualified to help the parties than either attorney.

Similarly on the financial issues, in litigation, the attorney would be telling the client what information is needed, then would review whatever was produced and would prepare an Inventory and Appraisement. The FP is much better qualified and less expensive in gathering, organizing and evaluating the finances.  In addition, the FP helps both parties plan and prepare budgets for post-divorce, which is rarely done in litigation.

Comparison in litigation

Hearings.  Especially in hotly contested cases, there are multiple hearings at the courthouse.  That means time off work, preparation time and attorney's fees.  We usually average about three hours at court every time a case has a hearing because we end up waiting around to be heard and then there's the time in the hearing.  And there are the inevitable postponements and resets.

Discovery. In litigation, we usually do discovery, which is a formal process involving written requests for information and as a result, the gathering of voluminous, often irrelevant, documents and photos that have to be copied or put on a disk for the other side.  Parties usually spend thousands of dollars on discovery alone.  Then there are often fights, and more hearings, about whether all the documents requested were produced.

Inventory and Appraisement.  This is like an expanded version of the joint spreadsheet used in Collaborative cases, but with a lot more detail, and each side prepares their own.  That means more than twice the cost.

Depositions.  These are a means of discovery where a witness is under oath and is asked questions by one or both attorneys.  There can be a number of these.  Each client will pay for the attorney's fees and some court reporter cost.

Mediation.  Most cases will settle in mediation.  The problem is that mediation usually takes place after many months, often just before trial.  You will pay the mediator as well as your own attorney.

Trial.  If mediation fails, you will go to trial. In Tarrant County, it usually takes 9 months to a year or more to get to trial.  Trials are also very expensive.

Paperwork. In addition to theses steps, there will be a lot of paperwork, from letters back and forth to pleadings and orders and discovery documents. It all costs money.

Bottom Line:  While Collaborative cases may seem expensive if viewed with no context or comparison to litigation, they actually are usually a lot cheaper than contested litigated cases.  In the Collaborative process, there are no hearings, discovery, Inventory, depositions or trial.  There's usually no mediation and there's a lot less paperwork.

If you want to compare processes, look at all the costs!

3 Fallacies over Lunch

At lunch today, a very good friend and I started talking about Collaborative Law.  I have known him over 30 years and we often talk about law, divorce (he's had two) and what I do as a lawyer.  We have discussed Collaborative Law a number of times.  I learned today that I need to be a little clearer with others when I talk about how the process works.  I was shocked to hear statement after statement of misunderstandings from him.

Here are three fallacies that my friend told me about Collaborative Law.  He believed these were fundamentals of the process.

• Husband and wife use the same attorney in a Collaborative case.  He was shocked when I explained that both parties must use different attorneys because there would be a conflict of interest in trying to represent opposing parties.  I actually hear this from a number of people who call in to make an appointment to see me for a possible Collaborative Law case.  In reality, both parties need separate attorneys so that each attorney can represent only one party and so that a party can have confidential communications with their attorney, as well as the undivided attention of that attorney.

• Collaborative Law is only used when the case is agreeable.  Quite the contrary, I explained that Collaborative Law is a conflict resolution process.  There's no need for Collaborative if everything is already agreed.  Collaborative is well adapted for dealing with very difficult issues, such as custody, visitation, property division, alimony, etc. We have extra skilled hands with the neutral therapist and the neutral financial advisor who can give appropriate  suggestions on difficult issues.

• You have to use litigation if the parties don't agree on everything at the outset.  No, Collaborative Law is a problem-solving process.  There's almost never a completely agreed divorce at the outset anyway.  If there are major disagreements, Collaborative may be the best way to resolve them.

If you are facing a divorce or other difficult family law issue, please contact a trained Collaborative lawyer and make an appointment to discuss whether Collaborative Law might be appropriate for your case.  Don't let any preconceived ideas prevent you from exploring that option!

How to Negotiate in a Collaborative Law Case

For people starting out in Collaborative cases, their focus is usually on something like gathering information, wondering what to expect or worrying about whether their own needs can be met.  Something that isn't considered too often is now to prepare to negotiate in a Collaborative divorce case context.  Here are some suggestions to help address that oversight.

1.  Learn from the mental health professional (MHP).  You may have some solo time with the MHP and there will certainly be a number of occasions when you are in joint meetings with her or him.  The MHP is skilled in helping people learn to communicate.  Choosing your words carefully, thinking before you speak and learning to listen will all be things you will learn or be reminded of.

2.  Identify goals, needs and interests.  You will be encouraged to focus on the future, not the past, and to work on the important issues.  At the very beginning, you will be required to come up with a list of items that are important to you. These should be discussed with your attorney and then will be discussed at the first or second joint meeting.

3.  Pay attention and respect your spouse's needs.  This is sometimes difficult because spouses often disagree about what's important.  Still, listening to your spouse's positions and considering them can lead to better, more amicable solutions for both of you.

4.  Prepare before joint meetings.  Review and discuss the agenda items and your ideas with your attorney before each joint meeting.  Get advice from your attorney.  Gather any needed information before the meeting and share it with the professionals and attorneys.  Think about what you want to accomplish and consider how your spouse may respond.  Talk it all over with your attorney prior to the joint meeting.

5.  Stay within the lines.  Please don't try to save time and money by negotiating with your spouse one-on-one outside the joint meetings.  That almost always causes problems.  Remember, if you were able to sit down  and have rational discussions, you probably wouldn't be getting a divorce.

Bonus Tips:

• Warn your attorney if you expect problems with any topics or information.  There may be some hot buttons for you or your spouse that need special treatment.
• Ask for a short time out if a surprise or problem comes up in a meeting.  We don't like surprises and don't want either party feeling uncomfortable.
• Listen before talking or acting.  That's basic!

What to Expect at the 1st Joint Meeting (and Why)

Collaborative Law is different enough from litigation that we insist on having a first joint meeting to put in a foundation so that everyone can be comfortable in the process.  This will be a brief introduction to the process.

1. Introductions.   We start off the first meeting by introducing ourselves to each other.  We usually have a team that includes two attorneys, a mental health professional (MHP) and a financial professional (FP).   Since we will all work together in an informal atmosphere, it is helpful for everyone to get to know who they will be working with.  We like to keep things informal and normally go by first names.  In contrast to litigation, attorneys and all parties speak directly to each other, which usually improves communication.

The first meeting is usually one of the few meetings when the whole team is together.  Most of the time, the parties work with just one professional at a time.  In some situations, if it helps the parties be more comfortable, we have the MHP present when the parties are working with the FP in gathering and organizing the financial records.  The MHP normally works alone with parties doing the preliminary work on kid issues.

2.  Reviewing the Participation Agreement.  Everyone should receive and read an advance copy of the Participation Agreement.  (A generic copy is available on my web site.)  The attorneys normally give out copies in advance and often review the agreement with their client.  We really emphasize the Agreement because it is carefully drafted to educate the participants and to clarify what will be happening, or what could happen, in the Collaborative  process.  We want to avoid misunderstandings and to encourage realistic expectations.

3.  Road Map to Resolution.  This document, also available on my web site, outlines  the steps of the Collaborative process.  We follow a logical, standard pattern that leads to an agreement that both parties are comfortable with.  The steps start with discussing the goals of both parties, researching the facts of the case, determining the issues, coming up with options and then evaluating the options and reaching agreements. Experience has shown  there are better results when we follow the process and don't skip steps and jump ahead.

4.  Rules of  Conduct.  These are reminders of common sense rules of how to act in meetings.  We want everyone to be comfortable and feel safe, while effectively  moving to a mutually agreeable settlement.  The Rules are good reminders in the heat of the moment when discussions sometimes get difficult.

5.  Goals.  One of the most important steps in the first meeting is often harder than it might seem on the surface.  We want the parties to each come up with their broad goals relating what's important to them and how they would like the case resolved.  We insist that the parties go beyond wanting a "fair" settlement and a"good relationship" or "as much time as possible" with the kids.

Some useful goals that we sometimes get are:  Having an adequate level of support until a party finishes school; Having financial security at retirement; Minimizing debt coming out of the divorce; Being involved with the child on a daily or weekly basis; or Having enough cash for a down payment on a house.  These are broad, but somewhat specific and they give us targets to work for.

6.  Dealing with Immediate Issues.  Sometimes we need to help the parties deal with interim issues of paying bills, sharing time with the kids and who stays in the house, among other things.  We can have brief discussions of such issues to help the parties until the next joint meeting.

7.  Schedule Future Meetings.  We usually schedule one or two joint meetings, as well as individual meetings with the mental health professional and the financial professional.

What's Not Included:  Don't expect to jump in and start negotiating at the first meeting.

Caveat:  Different Collaborative professionals will have slight variations on how they like to conduct a first meeting.  Always talk with your own professionals to find out what they will be doing.

Why Collaborative Law is a More Civilized Process for Divorce

Some people facing the prospect of a divorce are angry and want to punish their spouse, regardless of the cost and how it may affect their lives after they are divorced. Others search for a low-key, civilized way to split the sheets and go their separate ways. Those who do not want a destructive, expensive and stressful experience are beginning to turn to Collaborative Law when they learn about it. The process is not yet widely known among the public, but it is gaining more and more fans as they learn about it and try it out.

If you are looking for a nicer alternative to traditional litigation, here are some reasons why Collaborative Law may be your answer.

1. Collaborative Law involves negotiations that are interest-based. That means that the parties ignore traditional guidelines or formulas to come up with agreements. Instead of staking out extreme opening positions and working toward an arbitrary middle ground, the parties identify their goals, needs and interests at the first joint meeting and then follow up to make sure that any solutions that are discussed are consistent and supportive of those goals. A purpose of the process is to help the parties meet their most important needs.

2. The process works through a series of relatively short meetings. Here in Tarrant County, our Collaborative meetings usually run for 1 1/2 to 2 hours each. We don't have marathon sessions (like mediations usually do) because people get tired and don't function as well when there are 3-5 hour meetings. We have agendas that are created for each session and we can take breaks as needed. The meetings are nothing like court and very informal. We do what we can to reduce the stress of meetings, but we can always at least keep them short.

3. In Fort Worth and Tarrant County cases, we normally use a neutral mental health professional (MHP) as a communication facilitator. That's a broad responsibility which covers a lot of territory. We have excellent, experienced therapists who regularly work with us, which makes our team of professionals more effective. The MHP doesn't do therapy with the parties, but she/he does meet with the parties together or individually, as needed, and lends invaluable assistance at the joint meetings. On more than one occasion, when the other attorney and I hadn't noticed any problem, I have seen the MHP speak up and help one of the parties who was feeling slighted or attacked or distressed for some reason. A therapist is an extra layer of protection for the parties in a very difficult time in their lives.

4. The Collaborative process helps maintain a balance of power between the two sides. In some marriages, one spouse tends to dominate the other, generally or on certain issues. For example, one spouse may control the finances and the other spouse may not know much at all about them. In that type situation, the attorneys help keep balance, but an even larger help comes from the neutral financial professional (FP) who works for both parties. The FP will make sure that there is a thorough investigation and reporting on the finances, regardless of who ran the show in the past. It is a unique dynamic not found in litigated cases. Likewise, the MHP makes sure that there's no bullying and undue pressure or unfair tactics being used.

5. The financial professional also helps the parties with tax and other financial issues that need to be addressed during the divorce. The FP is specially trained in Collaborative Law and is familiar with Texas divorce law, so she/he can understand and explain various options, as well as tax consequences. Working together, the parties can often create tax savings that are ignored or impossible in litigated divorces where there is little cooperation.

For people wanting a more rational, civilized approach to divorce, Collaborative Law is likely the answer. It has been called the "kinder, gentler process" and it really is.

Special Note: If you are interested in finding a Collaborative lawyer, be sure to check the experience and training in Collaborative Law of the lawyer you visit. A trained Collaborative professional should have, at a minimum, a 2-day basic training and then 1 or 2 trainings a year after the initial one. Unfortunately, some non-Collaborative attorneys advertise about Collaborative Law and then just talk prospective clients out of it. While Collaborative won't work for everyone, you might get a second opinion if an attorney just tries to talk you out of it.

Slow Down!

One of the most common issues that comes up in Collaborative divorces is the desire by one or both parties to speed up the process. This can come up at the beginning or at various other times as we work through preparation and meetings.

Why are people in a hurry? There are a variety of reasons. Here's some:

• They want to save money. Fewer meetings = less cost (unless you get a bad result and have to start over).
• Divorce is stressful and they want it over with.
• They already have plans and want to get started on their post-divorce life.
• They don't want to be around the spouse any more than they have to.
• They are tired of fighting.
• The case seems very simple and shouldn't take any time.
• They can do things quicker on their own.
• Some don't like the process because they have to make tough decisions.
• They don't think there are any alternatives that they haven't thought of.
• Some don't like the "touchy-feely" aspects of a Collaborative case.

As a result of having some of those attitudes, parties in a Collaborative case will sometimes try to skip steps or try to meet with just their spouse to resolve some or all of the issues. That usually works out badly. Keep in mind that most people starting a Collaborative divorce have already failed at directly negotiating the issues with their spouse.

Here are three significant steps that should not be skipped:

1. Setting goals. Many people downplay this stage and are satisfied with such vague goals as
wanting a "fair" property division, "reasonable child support" and an "adequate" amount of time with the children.

• Going through the process of setting goals for yourself helps clarify your thinking and focus on what's really important to you.
  
• The process also educates your spouse about what you need. Even though you may have been married for a while, you spouse often doesn't really know what you want or need out of life.
• Goal setting is also a way to help everyone to start thinking about solutions. Once you identify what to aim for, possible solutions start appearing.

2. Gathering information. It is very common for one or both parties to think that they know what they have or what their circumstances are. That's not always the case. In fact, it is very common for at least one party to know very little about some aspects such as property, debts or children. An organized effort of gathering information can help both parties.

• Don't assume you know everything. Some things may have been intentionally hidden from you. Other things may have always been overlooked by you.
• One of the advantages of Collaborative Law is that there is an extra set of eyes looking over everything, whether it is financial or children's issues.
• Having a neutral-led effort to gather and share information can help where one spouse may not understand about debts or assets or child-care issues, for example.

3. Brainstorming. This is the step where the parties try to come up with as many different ways to meet their needs as they can. Often even ridiculous ideas can be tweaked into really effective solutions. It is very common for one or both parties to come to a meeting and announce that they already know the solution and than brainstorming is unnecessary. That is a mistake.

• You will limit your options if you skip over brainstorming. You may miss some great ideas.
• You will limit creativity. One of the best things about Collaborative Law is that it permits and encourages finding unusual solutions.
• Your needs may not get met. If you take a very limited approach, you may not be able to actually deal with some important needs. Assuming that you already know all the possible solutions may result in dissatisfaction with the outcome.

If you give in to the urge to move quickly and skip "unnecessary" steps, you run the risks of not getting heard, of missing out on creative problem solving and of completely missing resolving the issues most important to you. There is also the risk of one party being overbearing and trying to dominate the other party, leading to bad results as well.

All-in-all, from my experience, you will not get nearly as good a result when you move too quickly and skip steps in the Collaborative process.

Who Do You Want Controlling the Outcome of Your Case?

One of the core elements of Collaborative Law is that we remove the case from the court system and let the parties create their own terms, rather than have a judge decide issues. People who haven't been through the court system sometimes don't appreciate that difference between litigation and Collaboration.

In Tarrant County, Texas, we have six family courts that have two judges each, a District Judge and an Associate Judge. The Associate Judge hears most preliminary matters and the District Judge is usually the one to hear any final trials. When the parties cannot agree, the Associate Judge usually ends up making decisions on temporary issues, including custody, child support, visitation, who stays in the house, how the bills get paid and how the money is allocated, among other things.

There was recently an extensive article in the Fort Worth Star-Telegram about one of our Associate Judges. The article should not be taken as a scientific or completely accurate study of Judge Beebe, and definitely shouldn't be generalized to describe all of our family court judges. In fact, we have 12 judges with 12 personalities that are very different. While the judges all work with the same Family Code (statute) that we use in Collaborative cases, there is a tremendous variation from court to court as to how our judges make decisions, how they run their courts and even what issues are important or not important to them.

The Star-Telegram article does give a glimpse into what life can be like in the court system. Our judges in Tarrant County have a variety of experience and each has their own way of reaching the "truth" or dealing with the essential issues. All the judges know that there are two sides to every story. They have a hard job trying to come up with decisions that protect the rights and interests or both parties and any children. Unfortunately, the judges have limited exposure to the case and limited time to deal with it. Sometimes the parties are happy with the judge's decision, but often one or both parties are very unhappy.

If you are about to get involved in a family law dispute, you have a choice to make. Do you want a judge deciding the outcome of your case, or do you and your spouse want to make the decisions yourselves with the aid of neutral professionals for communication issues, children's issues and financial decisions?

For some people, turning everything over to a judge is a relief. Other people like to maintain control over their future and make their own decisions with expert assistance. If you are facing family law issues, it's a good idea to consult with a Collaborative Law attorney, as well as a litigation attorney, before deciding what course you will follow.

Why Is It Taking So Long? (Part 2)

In part one of this topic, we pointed out that Collaborative Law usually doesn't take as long as a significant, contested litigation case. In addition, there are some reasons why Collaborative cases require a number of meetings.

When you are the person attending the meetings, doing the homework and meeting with your attorney and the neutral mental health professional (MHP) and the neutral financial professional (FP), it can seem like a very slow process. You stay busy and it may seem like one meeting after another, with no end in sight. In reality, there are good reasons for being methodical and following through with the process. Here are some of the reasons:

1. People need time to process information. No matter how educated or experienced you and your spouse may be in financial and child-related issues, it will take each of you different lengths of time to process the information relating to the issues in the case. Not very many people are comfortable making instant decisions on important personal financial and family issues. There are usually many options and even more considerations for each party.

2. One spouse is usually farther ahead emotionally in the divorce process than the other spouse. That means that the parties and professionals are often slowed down to wait on the less-farther-along spouse to get comfortable with changes in his/her life. It is not uncommon for one spouse to have checked out of the marriage months or years before filing, while the other spouse is clueless. The clueless one will need time to catch up, and that necessarily slows down the process because things have to be done by agreement.

3. It often takes a while to gather information. While one spouse is often very familiar with the financial issues, for example, the other spouse may be very unfamiliar with them, so extra care is taken to educate the other spouse. In addition, the FP may want to review documents that take a while to obtain, such as retirement account plans and summaries, for example. Some issues relating to the children may need to be sought out, especially if there are special needs.

4. The parties need time to come up with creative solutions. Some issues are complicated and sometimes there are multiple significant issues. The parties and professionals need to create appropriate solutions and sometimes that's just a slow process. In some situations, the parties decide they need more information or more expert advice, which adds to time commitment.

5. It is usually necessary to limit the meetings to no more than two hours each. The parties and professionals get tired and that can lead to conflict or one party shutting down. There's no reason for the parties to get into a marathon negotiation session. That's often the way mediations are conducted, and it's often a problem. When there is a complicated estate or significant assets, there's a lot to cover and the discussions shouldn't be superficial. In such a stressful environment, people can operate effectively for only about two hours at a time.

The amount of time it takes to do a Collaborative case should not be an issue if you keep in mind that litigation would almost always take longer and there are good reasons why Collaborative Law cases take longer than you might initially expect.

Tips for a Better Collaborative Experience

Although most people enter into the Collaborative divorce process with the intent to get a "better" or "more civilized" or "friendly" divorce, the good intentions often fade away in the heat of the moment. In Collaborative cases, emotions can still be high, fears still exist and relational problems that may have led to the separation still exist. Personal and inter-personal problems are not cured by the signing of the Participation Agreement at the start of the process. Sure, everyone promises to behave and be cooperative and not delve into blame for past problems, but it is easy to change course if one or both parties gets mad or anxious.

The attorneys and other professionals working on the case are trained to recognize any bad or inappropriate behavior and to help the parties get back on course. Still, it would be better if both parties could avoid the flare-ups. With that in mind, here are 5 tips to help people in Collaborative cases to do their best.

1. Don't negotiate with your spouse between sessions. This is a very common problem and it's a very bad idea. Sometimes the case is going well and the parties think they can quickly settle some issues without the professionals around. Sometimes the parties just want to save money and settle some issues without involving the professionals. In practice, it usually doesn't work out well. The same problems, attitudes or behaviors that made it impossible to work things out before the parties hired lawyers still exist and will reassert themselves without the management of the professionals in the case. Please don't start negotiating directly outside of Collaborative sessions.

2. Don't text your spouse in anger or when fueled by alcohol. This doesn't need to be explained. Beyond that, I would suggest that any texting be extremely limited. Remember, such messages can be saved and would look very bad in court if the process broke down. And, that's not an effective way to get your spouse to do what you are wanting. (In addition, see the comments in #1).

3. Don't leave messages on a phone when you are angry or intoxicated. (See the comments in #2 and #1.)

4. Don't focus on blame or fault. It doesn't have a significant role in a Collaborative case. It is much better to look forward and not backwards. You may think your spouse is at fault on major issues, and you may be right, but your spouse would also blame you for some problems, and might also be right. There's almost always fault on both sides of a divorce. The problem is that after the argument about who's more at fault, you haven't moved any closer to resolution. You have just wasted time and created ill will which will make it harder to get to an agreement.

So, what should you do?

5. Focus on big goals, not small issues. Don't stay focused on the ground, look up! Formulate broad, relevant, important goals for yourself. Don't limit yourself to a predetermined outcome. For example, your true goal for housing may be to have a safe, affordable, secure home in a good neighborhood. That might include the house you live in now, but there might be other ways to accomplish that goal -- get a new house, a duplex, an apartment, house sit, rent a house, live with a friend or relative, etc. If you limit your goal to keeping the house you live in now, you may miss an opportunity to have a better living arrangement. Collaborative Law gives you the possibility of creating a better future for yourself. Don't waste your time dealing primarily with little problems. Your attorney and the other professionals can help you formulate goals for your situation. Think Big!