Why Does Collaborative Law Work?

Sometimes just explaining the Collaborative process isn't enough to convey how great a process it is. I have seen statistics showing successful outcomes in 85-90% of the cases where Collaborative Law was used.

So, why does it work?  Here are some of the reasons.  

1.  We have a team of professionals working together.  In a typical Collaborative case (at least in North Texas), we utilize at least four professionals:  2 attorneys, a neutral financial advisor and a neutral therapist who manages the Joint Meetings and also usually helps the parties put together a parenting plan.  Sometimes, we have a separate "child specialist" who helps the parties with the parenting plan.  All team members have training in Collaborative Law and experience in their fields outside of the Collaborative Divorce context. An experienced team of Collaborative professionals adds a tremendous value to the process.

2.  There is a focus on solutions, not fighting.  This is part of the contrast with litigation. We don't waste time assigning blame or accusing each other of various misdeeds. Obviously, if we're dealing with a couple divorcing, there have been misdeeds by both sides. Instead of looking backward, we focus on creating a better future for both parties.

3.  There is a lot of direct communication. This happens at meetings, most often under the supervision of the neutral mental health professional.  Part of what happens in the process is that both parties learn and practice better communication skills.  Most couples finish the process better able to talk about important matters without fighting.  That's especially important when there are children.

4.  The process lends itself to flexibility and creativity.  We are not bound to use standard solutions and statutory guidelines.  We start by focusing on what the parties want and need.  Then, we gather information and finally start choosing solutions to fit the circumstances of the parties. We have been very successful in getting Judges to approve highly customized solutions that our clients came up with.

5.  You and your spouse get to decide. You know what your needs are and your spouse does, too.  Instead of letting a disinterested Judge impose arbitrary and standard answers to everything, you get to come up with solutions you like and we make them the terms of the Decree of Divorce. You have the power to determine the details of your life after divorce and that is much better than turning it over a Judge to decide.


These are just some of the reasons why Collaborative Law works.  Yes, I am a fan of the process.  If you are facing divorce or have some other legal issue to be resolved, do yourself a favor and talk to a trained Collaborative lawyer about whether Collaborative Law could be used in your case.  I'll bet it can be!

Should I Use Collaborative Law in an Uncontested Divorce?

First, we need to understand what an "Uncontested Divorce" really is.  There are two common definitions which reflect different points of view.

 A party to the divorce may say that the spouses have agreed to have an uncontested divorce. That usually means that the parties both want, or at least will agree, to be divorced.  Very often, though, there is no agreement on the terms of the divorce.

For a lawyer, an uncontested divorce is one where the parties both agree to be divorced and they agree on all the terms of the divorce.  That means that they have agreed on custody, child support, visitation, property division, payment of debts, the possibility of spousal support or not,  tax issues and any other matters.  If any of those issues have not been agreed upon, it is not an uncontested divorce, according to the lawyers.

The Answer:

If your situation is the second example and everything already is agreed, you don't really need to use the Collaborative process.  If all terms have already been worked out, then you don't need to spend the money on a team of professionals to go over the agreement.  

On the other hand, if one or more of the issues remain in negotiation, then it may be worthwhile to use Collaborative Law.  If you both want to get divorced, but can't agree on some issues, that's a good situation for the use of Collaborative Law.

Alternative Situation:

If one person wants the divorce and the other doesn't, Collaborative Law may be a very good means to work things out.  Keep in mind that if one person wants a divorce and the other party doesn't, eventually a court will grant the divorce. Collaborative Law would be a good alternative because it is less destructive than litigation on family relationships and it can lead to mutually agreeable solutions.

Should Professional Athletes Use Collaborative Law?

Many athletes seem to think that they become almost bullet proof and that once they reach a certain level of athletic achievement, they can control virtually all aspects of their lives. They seem to believe that the money, notoriety and power that come with success on a big stage will enable them to avoid the problems that the general public experiences in everyday life. That is often true. Sometimes they can make problems go away with just a little money. On the other hand, occasionally, celebrities discover that they are caught in a quicksand that seems inexorably to suck them in with a tighter and tighter grip. Eventually, they face a fight to survive.

Traditionally, professional athletes relied on money, connections and/or a forgiving public to get through a crisis. Sometimes that doesn't work anymore, especially in personal and family matters, as several politicians and ministers have discovered in recent years. Depending on what transgressions may have occurred, athletes may face the end of a marriage, or other consequences. As great a loss as that may be, it can get worse. Celebrity athletes can also face embarrassment brought on by an ugly divorce, which can end up costing tens of millions of dollars, or more.

When a crisis arises, the first response, after the initial denial, is to try to keep everything under wraps so the disputes and allegations are not exposed to the public. If it looks like the issues won't go away, the parties should consider utilizing Collaborative Law as the means of resolving the matter in a way that protects the interests of both parties.

Why is Collaborative Law preferable in sensitive cases? Here are some reasons:

1. It's a private process. High profile people, athletes, entertainers or otherwise, need good publicity, but can really be hurt by a messy divorce or custody fight. Collaborative Law provides a safe, private environment where issues can be addressed and solutions can be created without disclosing details to the public. Privacy is one of the fundamental elements of Collaborative Law.

2. The process encourages creativity. In fashioning solutions for various issues with unusual characteristics, the parties are not bound by the standard solutions that courts use. Instead, for example, they can agree to financial terms which may adjust depending on the athlete's income or contract status. They can also allow the parties the freedom to create unique schedules for sharing the children, taking into account seasons, travel and other variables.

3. The parties stay in control. In litigation, if the parties can't agree, they give up their control over the outcome and let a judge make a decision which is binding. In Collaborative Law cases, the parties make all the decisions jointly, sometimes with assistance of neutral experts. The negotiating process changes dramatically in a Collaborative case because both parties, both attorneys and the other professionals in the case all have a vested interest in not giving up and letting a judge decide. They work hard to keep coming up with new and different approaches. Someone with substantial assets, or the spouse of that person, may not be very comfortable letting a stranger make personal and life-changing decisions about them. In Collaborative Law, both parties keep their power to decide the outcome and both parties participate fully in the decision-making process.

4. Both parties focus on the needs and interests of the parties. Collaborative Law encourages a more intelligent approach to problem solving. Instead of taking arbitrary positions, such as demanding a 50-50 or 60-40 split of the property, the Collaborative approach starts with both parties evaluating their own situations and deciding what their underlying needs, interests and goals are. It's a more comprehensive approach than how traditional litigation negotiations are done and the result is a plan that is geared toward the important issues for each party.

5. Experts are used as neutrals throughout the process. In Texas Collaborative Law cases, we usually bring in a therapist and a financial advisor to help with the parties. In a case with special aspects, such as a celebrity athlete being involved, other specialized neutral experts can easily be incorporated for specific needs, such as tax planning, children's issues, retirement planning, investment management, etc. In litigation, if those experts are used, each side normally hires their own expert and there's usually a battle of the experts at trial, at substantial expense to the parties.

Let's hope that the next time a professional athlete faces a divorce after some personal failure, that the athlete and his or her spouse are aware of Collaborative Law and choose to use it as the problem-solving process for ending their marriage. There have been too many high profile ugly celebrity divorces. It's time to take divorce "to the next level", to borrow a term popular with athletes and coaches, and to work Collaboratively.

5 Ways Collaborative Law is Like the Space Program

We recently had another successful launch of a space shuttle, but you may not have noticed it. We are near the end of the shuttle phase of the U.S. space program, about to switch to other vehicles, and we don't tend to pay attention to take-offs and landings as much as we used to. It's probably not a good idea to take space travel for granted yet, but people have accepted it as a normal part of life. While there are still innovations to be expected in the future, we are pretty comfortable with how space travel happens now.

After the recent launch, I began thinking about similarities between Collaborative Law and the space program. That may seem like a very strange comparison, one that doesn't immediately jump to mind, but there are some legitimate common features. Here are some I noticed:

• Both use old skills and equipment for new purposes in other fields. In the space program, a lot of the equipment was converted from wartime use to peaceful purposes, such as rockets and guidance systems. In Collaborative Law, we have begun to use neutral specialists from other fields to work with both parties to help them reach appropriate agreements.

• In both fields, we converted former fighters into peaceful leaders. The original astronauts were trained fighter pilots in the military who converted into peaceful space pilots. Most Collaborative lawyers are former litigators who learned and practiced trial skills. Sometimes, attorneys have trouble converting their focus to a peaceful process, but it will happen with experience.

• Both programs depend on a lot of cooperation and a blend of many different skills. The space program is a very complex system with many interrelated contributors around the world. Collaborative Law requires cooperation between two parties, their lawyers and usually some other neutral professionals. The process is effective because everyone works together and contributes some part to creating successful negotiations. Communication skills are improved by the use of mental health specialists. Financial and parenting decisions are improved though the use of neutral experts in each field.

• The space program is a peaceful endeavor and peace is the essence of Collaborative Law. NASA is a civilian agency that oversees the U.S. space program and the focus has been on peaceful advances in science and transportation. One of the main attributes of Collaborative Law is that it is much more peaceful than the destructive processes inherent in family law litigation. Going to trial, cross examining the other parties and witnesses and focusing on events in the past are all elements of the litigation approach that places little value on kindness, civility and family relationships. Collaborative Law provides a safe, creative and effective way for both parties to achieve their most important goals without tearing each other up.

• Some day, hopefully soon, neither space travel nor Collaborative Law will be a big deal. They will both be the norm. People will be able to travel to far away planets and it will become common. Probably sooner than that happens, we expect Collaborative Law will become the primary method of resolving disputes. Now, these are both considered somewhat visionary, but that will change before too long.

Stay tuned. Collaborative Law has been launched and is coming more and more into view!

Can't Afford to Divorce

It seems that more people are staying together because they really can't afford to divorce. A recent newspaper article from Birmingham, Alabama discussed the situation there. Although there is talk of that here in Texas, there have been no local in-depth surveys or studies. Nevertheless, the economy undoubtedly is having an impact. There are reports in Tarrant County that the number of new divorce filings is down. Here are some of the reasons why this is happening.

• Can't afford the cost of a divorce. Divorces are expensive for everyone. Of course, the cost is often related to amount of fighting going on, but even a minimal amount of legal work can be expensive.
• Can't afford to support two households. Doubling the house payment and utilities can be overwhelming when most people tend to live up to their income limits regardless of how much or how little income they have.
• Lost a job. There have been overwhelming numbers of workers who have suddenly lost their jobs recently. Certainly, a job becomes the top priority, and the loss of a job creates huge financial and emotional stress for an individual and a family.
• Lost retirement. While housing values are falling and people are losing their jobs, almost everyone who has retirement funds has suffered a substantial loss. It's the kind of loss that sends retired people back to work and puts off retirement for others. When you start talking about dividing up some significantly reduced retirement accounts, there may not be much retirement left after divorce.
• Can't sell the house. It used to be that retirement funds and house equity were often the biggest assets of couples. With retirement funds shrinking, there's just not much left for some people because house values have also gone down and it has become much harder to sell and house.

So what's a person to do if he/she wants a divorce?

• Consider staying together. Get some counseling and work together on common goals. Don't expect overnight solutions, but the greatest value may be staying together if both parties commit to working on solving their problems.

• Try Collaborative Law. The problems outlined above call for creative solutions. The standard approach of dividing everything down the middle may not be appropriate or leave the parties with enough to get by. Following the Collaborative problem-solving process, starting with analyzing each party's needs and goals, a couple can be guided to to some creative solutions to adapt to the financial reality. In Tarrant County, and most of Texas, we utilize a mental health professional and a financial professional to help the parties and that improves the outcomes for the parties.

• Borrow funds. If divorce is necessary and urgent, maybe the best course of action is to borrow the funds to pay for it. You can approach family members or maybe you have credit somewhere that you can use. Remember that you will have to pay back the borrowed funds, so spend your money wisely. Investigate whether you think it will be more to your financial advantage to take the litigation approach or to use Collaborative Law. Be sure to discuss your situation with a trained Collaborative lawyer before you decide.

• Just wait. It's sort of the opposite of the Nike slogan. If you can't afford to divorce, if you can't borrow funds and if you can't figure out how a Collaborative divorce could save you money, then maybe you should wait.

Don't be Listening to Others

Usually, when people sign up to use Collaborative Law, they are really fired up at the outset. They see the advantages of using a peaceful and dignified means to settle their divorce or other family law issue. They may have researched Collaborative Law and decided it was their best option. They may have been referred to a Collaborative lawyer and then learned about the process. Regardless of how they got to Collaborative Law, the parties usually start out open to it and willing to follow the rules.

In Texas Collaborative Law cases, we have some standardized forms for the Participation Agreement everyone signs and for rules of conduct. Most attorneys also start out with some common instructions which normally include a warning not to seek advice from others about the Collaborative case. There are several reasons why this is important.

• People outside the process don't know all the facts of the case. Giving advice based on incomplete information will almost guarantee a bad result. Without knowing all the facts that were considered, including the nonverbal communication that takes place, an advisor can't accirately evaluate what's going on.

• The advisor likely is not trained in Collaborative Law and doesn't understand why and how the process works. (Someone trained in Collaborative Law is probably not going to be advising on the side because they know not to do that.) What you explain to the untrained advisor will probably not make much sense and the advisor is likely to be very critical of the process out of ignorance.

• Most outside advisors who have experienced divorce have gone through the litigation approach. What works well in litigation may be very destructive in a Collaborative case. Don't listen to someone whose frame of reference is litigation. They don't know what they're talking about.

• Many people who have been divorced and are now advising you will bring biases from their own experiences which can lead to some really inappropriate advice. They could be biased against men, women, husbands, wives, grandparents, teachers, judges, lawyers, counselors, CPAs, child specialists, or some other type of person who has a role in a divorce. The advisor's assumptions can lead to mistaken conclusions and bad decisions.

• It is very common for friends to become very protective about a friend going through a divorce. As a result, the friends may question things and create unwarranted doubts about the process because they don't see the process going as favorably as they would like, even though they don't know the facts or how the process really works. Those doubts can eventually derail the process if the client doesn't ignore them.

Best Advice: Ignore friends and advisors. When you have questions or doubts or if you don't understand something, talk with your Collaborative lawyer or the neutral mental health professional about your concerns. The best advice comes from someone who is trained in the process who has actually been in the joint meetings and knows the facts and how decisions have been made. It can be tough to tune out well-meaning family and friends, but that can mean the difference between success and failure. Ask your advisors to trust you. Tell them you will explain what happened and how it happened, after a final agreement is reached. Remember, it's your life and your family!

Collaborative Law Works in Britain, Too

A recent article in the American Bar Association Journal provides further support for the use of Collaborative Law in settling disputes. The article quotes a senior British judge (in the London Times) as saying that Collaborative Law is much better than traditional litigation. The growth of Collaborative Law in the last five years, both in Britain and in the U.S., has been phenomenal.

There are many good reasons for the growth. I have previously posted on a variety of reasons why Collaborative Law often works better than litigation for resolving family disputes. If you are about to start a divorce or other family law procedure, you should discuss the possibility of Collaborative Law with your attorney. Be sure you are dealing with an attorney who has at least attended a two-day training on the process, and further experience is valuable. An experienced Collaborative attorney can help you analyze your case to determine if Collaborative Law might work. There are some cases where Collaborative probably won't work out, but in most cases, it's your best choice.

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.

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.