Friday, April 23, 2010

Can You Use Collaborative Law Without Trust?

A common concern many people have when considering using Collaborative Law is whether they can trust the other party. Some people think they can't or shouldn't use Collaborative if they can't trust the other side. To some extent that's true, but trust really exists on a continuum ranging from complete trust to no trust at all. Trust is not an absolute and it changes, to some extent, from issue to issue. Most of the time, parties have a trust level somewhere in between the two extremes. That means that they trust the other party some of the time, but not always.

For the cases where there's no trust at all, neither Collaborative nor litigation can guarantee a comfortable result. There will probably always be a suspicion that the other party lied, hid facts or misled. For the cases where there's some trust, but also some suspicion, the choice of process becomes a judgment call.

In reality, Collaborative Law and litigation rely on the same ultimate enforcement mechanism, which is having a court take action. In Collaborative Law, that would require the parties to change attorneys, which would cost both sides. In addition, each system has some additional means of ferreting out the truth.


  • Written discovery is often used to obtain documents, explanations and admissions about assets and other issues. That can be supplemented by oral depositions where direct questions are asked of witnesses (usually at least the parties) who are required to answer under oath.
  • Inventories . In divorces in Texas, we usually rely on sworn inventories and appraisements prepared by each side. In litigation, each party prepares his/her own inventory. Each inventory document usually has language saying that the party swears that all assets and liabilities have been correctly disclosed, to the best of the party's knowledge.

In Collaborative Law cases, we don't use written discovery or depositions usually. Instead, we rely on a cooperative process with many layers of protection built in. These layers include the following, that don't occur in litigation.
  1. The Participation Agreement that is signed by everyone at the beginning of the process has a commitment by each party to be truthful. It also has many comments about the importance of honesty, transparency and cooperation. While there's no guarantee that every party will always comply, having the written explanation and the discussion at the signing probably enhances the chances for success.
  2. The roles of the attorneys and other professionals are different. Attorneys are required to make sure that both parties are operating under the Collaborative rules. All of the professionals are charged with making sure the process is honest and transparent.
  3. The neutral financial professional (FP) is an extra safeguard for both parties. The FP reviews and analyzes all the financial information for both parties and makes sure it is complete and accurate. That's an extra set of trained eyes reviewing everything.
  4. The neutral mental health professional (MHP) also helps make sure the parties are being open and honest. The MHP works with the attorneys to help manage the process and ensure cooperation by both parties.
  5. The financial professional usually prepares either a sworn inventory or a very detailed spread sheet to organize all the parties' financial information. The FP usually reviews the original financial documents to complete the inventory or spreadsheet.
  6. If necessary, the parties can sign a sworn statement that all relevant information has been provided.
Bottom Line: No system is perfect. There will always be people who try to lie or hide information or assets. There are at least as many ways to catch cheaters in a Collaborative case as in a litigated case, but there are more people watching normally to prevent cheating in a Collaborative case. From my experience, people in a Collaborative case take their agreement seriously and the professionals ensure that everything is done properly.

Regardless of the system, the ultimate remedies are the same whether the case is in Collaborative or litigation. People hide assets and lie all the time in litigated cases. There, an attorney can file a motion to enforce or to divide undisclosed assets or to take some other action to punish a dishonest party. If necessary, that can be done in a Collaborative case, after the attorneys withdraw. Normally, the person caught cheating is also required to pay attorney's fees.

Tuesday, April 13, 2010

Having Collaborative Success

Most people going through a divorce or dealing with another family law issue want to do what they can to have a good experience with the Collaborative Law procedure. While it's hard to anticipate all possible problems that can arise in a case, the parties can act in certain ways that will help avoid potential pot holes as they work toward an agreement. Here are some suggestions to keep in mind.

1. Be willing to follow the structure set out by the attorneys and other professionals. Many people want to jump ahead and immediately start working out agreements without following the preliminary steps of setting goals, gathering information and generating options. Years of experience and input from many different experts have lead to the current procedural steps that the professionals plan to follow. You will forfeit your chances of success if you won't follow the normal steps of the process.

2. Do what you agree to do. Keep your word. If you agree to provide information, attend a meeting, follow a certain schedule or anything else, please do what you said you would do. If you can't be trusted to keep your word, the process will fail.

3. Stick to the agenda. The professionals and the parties set the agendas for the meetings. It is important to follow the agenda. Surprises lead to upset feelings, a sense of insecurity and a loss of confidence in the process. Straying from the agenda also wastes time and money for the parties. There will be time to get to all the necessary issues. The order of progress is set by the professionals based on our experience in finding the most effective ways to deal with issues.

4. Don't go rogue. Follow the agreements that are made as we go along. Don't suddenly decide to start taking actions on your own. That causes a lack of trust and will lead to a termination of the process.

5. Be patient. It takes some time to progress through the "Road Map to Resolution" that we follow. We don't skip steps because each step adds a significant part of the foundation for future actions. It may seem like the process is moving slowly, but it is virtually always the case that litigation would take longer to get to a final resolution.

6. Be respectful of the the other party's needs. It will be hard to you to get what you want in the end if you are unwilling to give in some to what your spouse wants. Try putting yourself in your spouse's position to better understand what s/he wants and why. That should make it easier for you to agree to what your spouse is asking for or to help you find or create a viable alternative.

7. Speak up. At joint meetings, be sure that you speak up to share information, opinions and choices. If you have special concerns or valuable information, make sure you inform the other professionals when you meet with them separately. Any problems you are having can be more easily dealt with if you let others know about them.

If you will follow these suggestions, you can greatly improve the likelihood of success for you in the Collaborative Law process.