Floridians Can Collaborate

Collaborative Practice is continuing to gain official acceptance in the U.S. In October 2007, the presiding judge in the Miami-Dade Circuit Court signed an administrative order authorizing the use of Collaborative Law there. That was the culmination of work by many attorneys in that area who put a lot of effort into getting official sanction for the new process for peacefully resolving divorces and other family law issues. At about the same time, the American Bar Association ethics committee issued an opinion validating that it is an ethical way to practice law -- an opinion widely shared throughout the U.S. and in many other countries.

Texas was the first state to get a statute passed specifically authorizing Collaborative Law for use in family law cases. Information about Collaborative Law in Texas can be found at www.collablawtexas.com or at my web site. Slowly, but surely, the process is spreading and more and more people are able to utilize the process to peacefully resolve their disputes.

Fewer, but Friendlier, Divorces

A story in the Kansas City Star on November 21 provided some surprising news about the state of divorce in the U.S. The common perception is that the divorce rate is rising and that fewer than half of marriages survive. That apparently is changing. From 1979 to 2005, the rate of divorce dropped from 22.8 to 16.7 per 1,000 married couples. About 53% of the couples who married from 1975 to 1979 had marriages that lasted at least 25 years, which was an improvement over previous times.

The article pointed out that not only is the divorce rate falling, but fewer people are going to court to resolve their marital issues. All over the country, people are turning to new alternatives to trials. Mediation, which began to become popular here in Texas in the mid- to late-1980s, continues to grow. There are more and more quality mediators available to work in Family Law cases and other matters. In addition, arbitration is becoming a little more common, but it is still not very well known.

One of the best innovations that is making a dent in the trial statistics is Collaborative Law. Across the country, more cases are successfully using Collaborative Law to resolve all kinds of Family Law matters and some other matters, such as probate, employment claims and contract disputes, all without going to court.

Having the choices available makes it much easier to work out solutions without going to trial. While Collaborative Law is often the best alternative, there are situations where it may not work well. In those cases, mediation or arbitration can be extremely helpful. Parties considering divorce should visit with one or more attorneys and find out all their options before they get started. For advice on Collaborative Law, make sure you visit with a lawyer who is trained in Collaborative Law.

The ABA Seal of Approval

Because Collaborative Law is still a fairly new approach in the law, some attorneys haven't really warmed up to the concept of doing divorces and other family law cases a different, non-traditional, way. For various reasons, often because they don't like change, they have opposed the expansion of Collaborative Law, or at least haven't been trained and don't participate in it.

Some attorneys have expressed some vague ideas that there could be some ethical problems with Collaborative Law. In February 2007, a committee of the Colorado Bar Association gave an odd advisory opinion that attorneys there should not participate in Collaborative Law because it created a situation of divided loyalties, which was based on a unique Colorado rule.

That issue should be laid to rest now, however, because the American Bar Association Ethics Committee has issued an opinion supporting Collaborative Law as long as the parties involved are thoroughly aware of how the process works. Educating clients about the process is something that is a part of every Collaborative case. It involves letting the parties know the various options they have in how legal cases can be resolved. Before a Collaborative Law case begins, both parties must understand and commit to the process. If they choose not to take the Collaborative path, they are free to try litigation or another approach.

In Texas, we have the first Collaborative Law statute passed that is now in our Family Code. We are beyond the vague ethical issues because the statute in effect endorses the process. In practice, we have created a Texas model, or approach, for Collaborative Law that involves giving the parties full information about their options and letting them make informed decisions about how they wish to proceed.

At least five other states have ethics opinions supporting Collaborative Law. Colorado has been the only state that has published a critical ethics opinion and the A.B.A. should now have put the issue to rest. It's nice to have some additional confirmation that we are participating in a helpful process for people in a difficult time. For best results, clients should thoroughly discuss all questions and concerns with their attorneys before they start the process.

An Overview of Texas Collaborative Law

Collaborative Law is a dispute resolution system that permits the parties to a divorce or family law issue to settle out of court in a respectful, private and mutually agreeable manner. The parties each have their own attorneys, but they agree at the outset to not go to court. Instead, they set goals, gather information, create solutions and reach agreements in a series of relatively short meetings which they schedule themselves. They control the timing, the subjects and, most importantly, the solutions. Courts are used to formalize the agreements once the parties have worked things out.

One of the reasons why Collaborative Law works is that once the Collaborative participation agreement is signed by the parties and their attorneys, the attorneys are required to withdraw from representing their clients if the process fails to reach an agreement and someone wants to go to court. Those attorneys cannot represent those clients in a contested matter in court. That creates a huge incentive for both attorneys and clients to stay with the process and look for other solutions when the going gets a little tough. In a regular litigation case, the easy cop-out is for one or both parties to tell the other party that they will just let the judge decide if the other party won’t agree to an offer. That can’t be done without costing both parties a lot of money and without the attorneys losing business. Everyone loses by that alternative, so everyone generally keeps trying to find an acceptable solution.

Early statistical reports are indicating that at least about 93 to 95% of Collaborative cases reach agreement. That is comparable to the success rate of a good mediator in Texas who usually comes into the process after both sides have already beaten each other up (figuratively), gotten ready for trial and spent a lot of money.

Collaborative Law won’t work for everyone. It will work in cases involving affairs, custody disputes, gay or lesbian issues, prenuptial or partition agreements, division of complex property, high income families, one parent who hasn’t worked outside the home for years, special needs children and other parenting issues, among other things. It may not work if one or both parties have unreasonable expectations, some mental illness, some substance abuse, some situations of domestic violence and some other situations. In general, Collaborative Law is appropriate for most family law matters, especially where there is value in maintaining good family relationships, such as when children are involved.

This blog is set up to provide information about the Texas approach to Collaborative Law. Since 2000, when Collaborative Law was introduced in Texas, the process has evolved quite a bit in Texas and elsewhere. We have moved from having "4-Way Meetings" with just the two attorneys and the two parties, to have "Joint Meetings" with the two parties and their attorneys, sometimes joined by a mental health professional and/or a financial professional and/or a child specialist and/or another neutral specialist. Sometimes the parties work on parts of the process with just a neutral specialist and then go back to the attorneys to review what has been covered. Sometimes the parties will work with a life coach to help them get through the process.

Collaborative Law in Texas has become an opportunity to customize an approach to help the parties to a divorce or other family law matter deal most effectively with their unique facts, needs and opportunities in a private, respectful and dignified manner. The process uses a problem-solving model that is easy to understand and produces creative, appropriate and welcome solutions to often difficult and troubling issues.

In Collaborative Law, we go through a five-step process to create solutions. First, we have the parties identify their most important goals, needs and interests. We ask the parties to think about the big picture and to think both short-term and long-term. Second, we gather information about the facts of the case. We learn about the financial issues and children and family issues. Third, we go through a brainstorming process in which we generate as many ideas as possible (good, bad or even ridiculous) to resolve each issue. That is done without criticizing or judging any ideas as we write them down. Fourth, we go back through and evaluate each idea. Is it feasible? Will it help achieve an important goal of a party? What are the consequences of trying it? Fifth, after a thorough discussion and evaluation, decisions are made and agreements are reached.

Collaborative Law has become the preferred method of dispute resolution for many attorneys and other professionals in Texas. There are over 400 members of the Collaborative Law Institute of Texas, the statewide organization of Collaborative professionals, and there are probably a total of more than 700 professionals in Texas who have been trained in Collaborative Law. The International Academy of Collaborative Professionals has well over 1000 members in the U.S., Canada, Great Britain and many other countries. The process works for clients and the attorneys and other professionals find it a more enjoyable and rewarding way to help people through very difficult times.