What Issues are Appropriate for Collaborative Law?

Many people think Collaborative Law is useful only in cases where both parties are basically in agreement. They think that spouses or ex-spouses couldn't sit down and have civilized negotiations on sensitive child custody or financial issues. Because couples get into arguments on their own, some think that Collaborative Law can't work in high conflict families or where there may have been infidelity or other misconduct. Those people are wrong because Collaborative Law, with its emphasis on looking forward and not spreading blame for past actions, is usually a much better vehicle for resolution of significant issues. Where parties value privacy and controlling their own destiny, Collaborative is a much preferred alternative.

Here are some of the issues which can be effectively resolved with Collaborative Law:

• Divorce
• Annulment
• Prenuptial agreements
• Post-marital partition agreements
• Division and sharing of parental rights, powers and duties
• Child custody
• Child support
• Visitation, including specialized schedules for certain occupations
• Education expenses, from day care to pre-school to private school to college to graduate school
• Alimony/ spousal maintenance
• Property division
• Complex property division issues
• Debt division
• Tax planning
• Paternity issues
• Break-up of same sex relationships
• Modification of existing orders
• Enforcement of existing orders
• Health and life insurance issues
• Disability needs
• Special needs children
• Professional practices
• Family businesses

While this is not an exhaustive list, it does provide an indication of the broad range of issues that can be successfully navigated through the use of the Collaborative Law approach.

Making Child Custody Decisions

Divorce can be very difficult emotionally. Powerful feelings can get stirred up when discussing custody arrangements or a change in custody. Getting into a custody fight can be one of the most expensive, emotionally draining and destructive things someone can do. That’s true whether it is an initial custody determination or a subsequent modification or change of custody. A custody fight is often as damaging for the children as it is for the adults. For those who want a more civilized means of resolving such disagreements, consider the following advantages of Collaborative Law.

1. Collaborative Law puts the focus on the real underlying goals of the parties. Sometimes people ask for primary custody when they really want something else, such as to be included in major decision-making, to get more time with the children or to have a different schedule with the children. There could be any number of truly important issues, but a parent may think that seeking primary custody is the only way to meet their needs. The professionals in a Collaborative case help the parties dig deep and understand their most important goals and don’t let them approach the matter superficially. Better solutions are possible when the parties are focused on the right issues.

2. Collaborative Law is a process that encourages the parties and attorneys to bring needed neutral expert helpers to assist the parties identify their goals, discover various options and select appropriate solutions that tie in to their goals, needs and interests. Child experts can be brought in to work with both parties and help them develop unique plans to fit their circumstances.

3. The parties can be more creative in a Collaborative case. In a traditional litigation case, the attorneys, parties and judges normally just default to the standard guidelines for child support and visitation, as well as standard divisions of parental rights, powers and duties. Those can be considered in a Collaborative case, but it is just as useful to see the variety of guidelines developed by various other states’ laws. All of that information can be combined and refined with additional original ideas, to come up with custom plans to meet the parents’ needs. A plan can be developed that preserves and utilizes the strengths of each party.

4. Collaborative Law is an ideal environment to set up a temporary test arrangement or transition to try out one or more plans for changes. The parties can set up temporary plans and let experts help evaluate their success as well as suggest refinements. There doesn’t have to be just one final decision made after a contentious build-up. Changes can be made gradually or temporarily. New adjustments can be easily made since the parties control the timing and procedure of the process. Collaborative Law is a much more flexible process than litigation.

5. Most importantly for many people, using the Collaborative approach allows the parties to preserve peace and family relationships. Everyone works cooperatively. There is less competition between the sides when the stakes are changed from "winner take all". The children really come out ahead when they see their parents getting along and speaking of and to each other in friendly terms.

Experience has shown that creative and successful plans can be developed through using the Collaborative approach. In matters involving children, it makes sense to use the best approach available, which is usually Collaborative Law.

Vermont Collaborative Law

You may be wondering why there's a post about Vermont here in the Texas Collaborative Law Blog. The answer is that some points were raised that are just as relevant here in Texas.

There was a very nice short article about Collaborative Law in today’s Burlington (VT) Free Press. The article was really a low-key introduction to Collaborative Law and was based on the experiences of a local attorney. The author reaffirmed the advantages of using the Collaborative process and contrasted the traditional litigation system.

The article was followed by a comment from someone who apparently had had a bad experience with divorce and hadn’t bothered to read the article. The comment writer had three main complaints which should be answered. They are fairly common statements made by people who are unfamiliar with how Collaborative Law really works. This writer claimed that Collaborative Law was basically the same as no-fault divorce, which clearly shows a lack of knowledge about the subject. Here are the issues the comment raised:

1. Collaborative Law is good for short marriages with no assets or kids. Actually, anything would work for those situations. Collaborative is really more appropriate where there are significant assets or where there are some disputes regarding the children, such as dealing with custody, visitation, support, etc. Collaborative Law is a much better approach for dealing with difficult or complex issues.

2. The process is unfavorable for women with dependent children. Actually, the Collaborative process is very helpful for both parents because they both get to participate in, and control the outcome of, decision making. They don’t have a decision imposed on them by a third party or by arbitrary guidelines. Neutral expert help can be brought in to assist the parties in exploring new solutions and reaching agreements beneficial to both sides.

3. Fair deals are hard to come by. The initial problem with that statement is that "fair" is completely subjective. What’s fair to one party may seem completely unfair to the other. A better approach is to identify what each party’s goals, needs and interests are and then try to come up with ways to achieve them. Both parties can be satisfied with meeting their goals and don’t have to deal with unrealistic and unquantifiable standards such as fairness. If one’s needs are met, the results have to be satisfactory.

Hopefully, people facing the possibility of divorce will seriously investigate the possibility of using Collaborative Law to help solve their problems and not just accept someone’s superficial and erroneous assumptions about 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.