Wednesday, November 21, 2007

What Not to Expect in a Collaborative Case -- Part 2

A week ago, I had a post about false assumptions about how Collaborative Law works. The mistaken ideas should be avoided because they can create enormous problems for Collaborative cases.

Here are a few more expectations to avoid:

1. We will base our agreements on standard guidelines. The lazy, uncreative approach is to open the Family Code and use child support guidelines or standardized possession schedules for the children. Such approaches also are likely to not achieve the parties' goals. Guidelines are really limiting crutches that inhibit creative thinking and problem-solving. It is much better to create a customized plan dealing with each issue.

2. The process is easy. For being a more civilized and respectful process, there can still be a great deal of stress. Although this is a great decision-making model, there are still some very tough decisions to be made. Parties may not need to fear being torn apart in court, but there is a different type of pressure they feel in a Collaborative case. That is a big part of why we generally limit joint meetings to 1 1/2 to 2 hours. The process can be invigorating, and is certainly better than litigation, but the difficulty should not be underestimated.

3. There is no active role for the attorneys. While the attorneys' roles are different than in litigated cases, and there is a great emphasis in the parties speaking up and discussing options and then making decisions, the attorneys are necessary for the process. Attorneys provide legal analysis and framework for the parties. They also provide the paperwork. In addition, experienced Collaborative attorneys will help discussions move smoothly and effectively. Lawyers are also important for discussing issues with the parties and with the other professionals before and after joint meetings. Attorneys are active, but in non-traditional ways that may not be as dramatic as making closing arguments or cross-examining in trial. Nevertheless, Collaborative Law is a process that heavily depends on having trained lawyers involved throughout the process.

4. You will be at the mercy of a controlling (oppressive) (choose your adjective) other party in joint meetings. That concern is one of the primary reasons why neutral mental health professionals have become so valuable in Texas Collaborative Law cases. Their roles include helping both parties to: communicate effectively; avoid creating problems by how they act and what they say; and feel safe in the process. Not only are (both) the attorneys actively watching for problems and intervening as necessary, but they usually meet with their clients before and after joint meetings to review what is being covered. There are actually several layers of protection provided.

5. Your attorney and the other professionals don't need specialized training. Some attorneys will try to handle a Collaborative case without going through at least a two-day basic training course. Some can do an adequate job because they may have a lot of experience as mediators, but there are often problems. Some of the problems relate to differing expectations between the attorneys. The untrained attorney may not be as familiar with the Collaborative problem-solving process and may not realize what he/she needs to do to prepare their party for meetings. Attorneys must undergo an incredible shift in their minds about how to handle a Collaborative case and how to act, so it really does require some specific training. The same is true for the mental health and financial professionals often brought into a case.Fortunately, there are more and more attorneys and other professionals being trained in Collaborative Law.

These tips should respond to the concerns that are sometimes felt by people considering the Collaborative approach. The best way to deal with these and other assumptions is to fully discuss them with your attorney. A well-trained and experienced Collaborative attorney can not only answer your questions, but can discuss your circumstances to clarify how Collaborative Law may work for you.

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