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!

Choosing a Collaborative Lawyer: Why Training is Important

If you are trying to decide which Collaborative attorney to hire, you are probably looking at web sites and blogs to get information and to find out about the knowledge and experience of various attorneys.  There are many trained Collaborative Law attorneys to choose from in Tarrant County.  You do need to meet one or more in person to try to determine if the attorney's style fits well for you. 

Another factor to consider is the attorney's experience in continuing education.  Does the attorney regularly attend trainings to improve his or her Collaborative skills?  Here's why that's pretty important.

• Collaborative Law techniques have changed over time and continue to change.  New ways of doing things are tried out and the changes can improve the outcome for everyone.  If the attorney doesn't attend significant training on a regular basis, the attorney will not have current skills and may not be as helpful as an updated attorney.

• Forms and paperwork evolve.  Over the years, there have been significant changes in the paperwork used in the process.  In Texas, we have developed some of the best forms and procedures anywhere.  They are copied by Collaborative attorneys around the world.  We don't sit still and just keep using the same old forms.  We update them and share the information in trainings.  

• Collaborative skills need constant reinforcement.  Collaborative practice is so different from litigation, the old standard approach, that it is necessary to regularly go back for more training to refresh and remind us about the best ways to work together.  Without attending regular trainings, it is easy to slip back into old, bad habits from litigation.  Clients will get a smoother process and better results with attorneys who believe in continually updating and improving their skills.

So, when you are shopping around for a Collaborative attorney, pay attention to whether the attorney frequently attends Collaborative training.  For bonus points, find out if the attorney also lectures about Collaborative Law.  You want to get a well qualified attorney who can work well with you.

Can Collaborative Law Work for a Custody Case?

There is a common misconception that Collaborative Law will only work, or will work best, when the parties start out in "near agreement" with each other.  In other words, it works if the parties are very agreeable people and are close to a settlement.  Actually, Collaborative Law works well for major disputes, including alimony, property division and special needs, as well as custody and visitation.  Collaborative is a problem-solving process which is not limited or intended for just the easy cases.

In reality, Collaborative Law is excellent for tough issues, such as custody.  Here's why it works:

1.  Collaborative Law focuses on the underlying needs of both parties.  Even if both parties start out saying they want "custody", the professionals immediately ask questions such as what custody means to each party, what precisely each really wants and why they want that.  Often that digging will lead to alternatives that can accommodate the true needs of each party.

2.  Collaborative separates custody from finances.  In litigation, it is fairly common for one parent to go for custody as a strategy to win financial concessions.  It is not easy to sustain that insincere approach in a Collaborative case where there's a Mental Health Professional (MHP) and sometimes a Child Specialist.  Custody issues are managed by focusing on each parent's true interests and the best interests of the children.  There's no overlap with finances to give unfair leverage to one of the parties.

3.  In Collaborative cases, we utilize the MHP for better behavior and communication.  In litigation, the parties are free to act up and try to manipulate or bully or pressure each other.  It happens all the time.  In Collaboration, the MHP works with both parties to maintain a civil, respectful approach and to learn to listen and communicate better.  That's just not done in litigation.

4.  Collaborative Law cases (in Fort Worth/ Tarrant County) will also bring in a Child Specialist in some cases.  The Specialist is a neutral expert who helps the parties create plans for how they will share time and responsibilities for children.  They focus not just on their own desires, but also consider what is best for the children.  In litigation, it often just turns into a tug-of-war over the kids.

5.  Collaborative allows the parties to consider or create "non-guideline" solutions. In litigation, if the parties can't come to an agreement, the judge will usually impose guideline child support and guideline visitation.  Those standard solutions are pretty good, but they don't fit all situations.  When the parties can come up with pretty much any arrangement they want, they not only are more satisfied with the immediate results, but they tend to not fight as much in the future.

Not every case can be effectively handled by Collaborative Law, but custody cases can almost always benefit from the process. Don't write off the process yourself.  Check with a trained, active, experienced Collaborative lawyer to find out if it might work for you.  Before you get started, talk with a qualified attorney to see if Collaborative would be a good fit for your case.