Why Some Litigation Gets Out of Control

Almost everyone has heard horror stories about terrible divorce or child custody disputes. Movies like War of the Roses, while extremely exaggerated in places, show some of the really bad behavior that sometimes happens in family law litigation. Most divorces aren't as bad as the ones portrayed in various movies, but they are still plenty stressful and unpleasant.

Some people just refuse or are unable to be reasonable and consider the big picture. Some people are emotionally immature and lack the ability to control themselves. For the unreasonable, short-sighted and uncontrollable people, Collaborative Law is not a good fit; they just need to fight.

Most people, even when they are angry with their spouse, can control their emotions when they understand what's at stake (in a divorce) and what their settlement options are. Those people are likely good candidates for Collaborative Law if they value privacy, control over the outcome, flexibility, creativity and the use of well-trained neutral experts.

One of the reasons why more people are trying out Collaborative Law is that they are afraid of bad litigation. People should keep these in mind when deciding between litigation and Collaboration for their divorce or other family law issue. Here are some common reasons why litigation gets out of control.

1. There is an emphasis on attacking each other. Lawyers, and often their clients, have a natural tendency to attack the other side to try to "win" the case. Such an approach is destructive to personal and family relationships. Damage from an ugly divorce can be difficult or impossible to correct.

2. Some people have more money than sense. While some people reduce their fighting when they start to run out of money or when they realize there is little value left to be gained by fighting, others never slow down until their lawyer withdraws for non-payment of attorney's fees. A case can get out of control when the parties lose their sense of proportion, when the cost of litigation approaches the value to be gained. Sometimes, people just get stubborn and fight as "a matter of principle". That's almost always a bad decision.

3. The parties experience frustration due to an inability to control the outcome. In almost every litigated case, there are negotiations. Sometimes they result in settlements and sometimes they don't. When a case actually goes to trial, even for limited issues, and especially where major issues are to be decided by a judge or jury, it can be a very frustrating experience for the parties because they have so little personal decision-making power. Judges often will severely disappoint one or both parties who may not understand how a judge could find facts so different from how the party "knows" them to be.

4. There is a common strategy to win a war of attrition, or wear out the other party. It doesn't take too much creativity to just keep pressuring the other side, but it sometimes leads to a side giving up. It is very unpleasant to be the recipient of the continuous "hammering". In the end, there may be a settlement, but there would have been tremendous damage to family relationships and that often leads to continuing conflict for years to come.

5. Some attorneys don't attempt to control their clients or moderate their behavior. Sometimes, that is because the attorney believes his or her role is to just stand for, or just do the bidding for, the client without trying to control, direct or moderate the client's actions. The attorney does not offer to help the client by suggesting alternatives to a very aggressive and demanding approach. Without an attorney willing to manage the client, major trouble can develop.

6. Sometimes, the parties get frustrated by legal limitations, such as having to use guidelines and comply with statutes. If the parties are negotiating, especially in a Collaborative context, it is easy to work around restrictive statutes and rules. On the other hand, litigation usually follows various statutes that limit the options of the parties and the judge.

7. There's no professional neutral behavioral help. Most of the time, at least in the North Texas area, Collaborative cases include a neutral mental health professional who is a valuable asset in keeping the heat down in a case. Both parties feel safer, better listened to and more able to participate when Collaboration is tried. In litigation cases, crazy, angry, depressed or anxious people generally don't get help, and that makes it hard on everyone.

Litigation is often a stressful, unsatisfying method of settling disputes. Collaborative Law offers a safe, rational and creative haven for problem solving. When litigation goes bad, it can be devastating financially and emotionally to the parties. Parties considering how to resolve their legal disputes should carefully consider the advantages of Collaborative Law and the difficulties of litigation.

How Collaborative Law Protects Your Privacy

This is one in a series of postings about the advantages of Collaborative Law. For many people, privacy is one of the most valuable aspects of Collaborative Law. There are various reasons why someone might not want all of his or her dirty laundry or even clean laundry exposed to the public. The following are 5 ways that privacy can be an advantage of Collaborative Law.

• In Collaborative matters, there is a series of relatively brief, private meetings between the parties. In contrast, litigation usually involves open court rooms and public testimony. There is always some interest in having cameras in the court room, and that would really make the events public through television and the web. With cell phone cameras, even testimony in court could show up on YouTube.


• Collaborative cases feature confidential negotiations directly between the parties. The meetings are not open to the public and discussions are not to be disclosed. Litigation provides for the judge (or occasionally a jury) to make decisions which become part of the public record of the file.


• The Collaborative approach allows records to remain private. Litigation, on the other hand, involves a lot of public documents, pleadings and testimony, which are produced and displayed in the case. Many people would prefer to keep the personal information and records private.


• The privacy of Collaborative Law helps create a respectful atmosphere which is often in sharp contrast to parties who get out of control and create a public spectacle in litigation. Private sessions reduce the bad behavior that often develops in litigation.


• Working in a private and respectful atmosphere, Collaborative Law focuses on the future, not rehashing and emphasizing each other's faults. In litigation, attacks on one party usually draw out a stronger response in retaliation and a lot of negative energy develops. There is no actual or perceived need to strike back in Collaborative Practice, and such behavior would be quickly managed by the attorneys or a mental health professional acting as a neutral to help both parties.

Most people see the advantage of privacy in making important personal and financial decisions for themselves and their families. There is very little about litigation that permits privacy. Collaborative Law, on the other hand, provides excellent privacy for both parties in the case, and that's one of the significant reasons why people choose to solve their marital issues by using Collaborative Law.

House Sharing During a Divorce

One of the trends I have been noticing in the last few years is that more couples are staying in the same house as their divorce progresses. This can happen when both parties are still compatible or at least are willing to behave civilly toward each other. Sometimes the parties decide that they need to save their money and not immediately set up a second household. Sometimes work schedules make such an arrangement easy to do. And sometimes, neither parent can stand to be away from the kids. Whatever the reason, staying in the same house can add to tensions or can open the parties up to possibilities of more cooperation in a variety of ways.

I have especially seen this house-sharing trend in Collaborative cases, which isn't too surprising if you think about it. Collaborating couples generally are willing to accommodate each other in ways that warring couples aren't. There is also less competition and possessiveness in Collaborative cases. Sharing the house often leads to more "out-of-the-box" solutions to economic and parenting issues, and that's a good thing.

Unfortunately, such house sharing can occur in hotly-contested, litigation cases and that can lead to a lot of stress as well as ridiculous posturing. In those cases, it may occur because neither party wants to give an inch on keeping possession of the house. And that can be the case even where one party or both could not afford to pay the house payment. If the parties were using a Collaborative approach, they could very likely come up with a reasonable solution and make everyone's life less stressful.

An interesting story was recently distributed by the Associated Press describing how divorce in Cuba works. They don't use Collaborative Law, but they manage to have brief, quick divorces. The problem is that the newly divorced parties often have to remain in the same residence for years (maybe forever) because of a severe housing shortage. It leads to many difficult years of co-existence, but there is apparently no alternative. Take a look at the full article to get a little peak at life in Cuba today. Thanks to Kramer Vs., the always interesting blog from the Rosen Law Firm in North Carolina.

The Problem of Unrealistic Expectations

There have only been a few studies or surveys into why Collaborative Law may not work in some cases, but one of the biggest problems encountered has been unreasonable expectations. These problems arise in both the outcome expected and thoughts about how the process will work.

Some of the outcome expectation problems are as follows:

• Having a pre-determined outcome in mind and being unwilling to change. Some people are attracted to Collaborative Law because it is more private and more civilized, but they are unwilling to compromise on the initial results they desire. In other words, they don't fully commit to the process. Sometimes they can be lucky and reach agreements that achieve their goals. More often, they become frustrated, and frustrate everyone else, when agreement cannot be reached. They usually blame everyone else for the breakdown.

• Expecting to solve impossible problems. Sometimes the other party is mentally ill and simply can't work through the process and reach an agreement. Sometimes there just is not enough money to go around, for example. Sometimes a party or a child has physical or mental limitations that prevent them from doing something a party really wants done. No amount of wishing or peaceful negotiations will make some solutions possible.

• Believing the process can overcome the unrealistic or unreasonable other party. We can do little to control other people. If the other party is unbending in pursuit of unrealistic objectives, such as demanding a certain level of retirement income that is not achieveable, the process can't solve the problem.

• Expecting to achieve everything that they want. Usually, there are finite resources, or at least limits, and that may mean that some goals are impossible. While Collaborative Law will provide the means for creating more effective customized solutions, there usually is still need to negotiate and compromise. Parties generally will come out ahead of what they could expect through litigation even if they don't get everything they want.

• Thinking you can change your spouse's behavior. While some changes can be made through the assistance of the mental health/communication professional or the child specialist or financial professional, your spouse must want to change before it will happen. The process does not just magically change personalities or behaviors.

There are also problems relating to expectations about the process.

• Expecting the process to be fast. Unfortunately, "fast" is relative. In Texas, there is an automatic 60-day waiting period between filing for the divorce and the earliest date that the divorce can be granted. In litigation, in Tarrant County at least, it is normal for a contested divorce to take at least 6 months to a year (or more) to be resolved. In Collaborative Law cases, there is a wide range of time spent in the process, but it rarely goes a year, unless the parties want it to. Usually, it can be done in a few months, but it may seem longer to a party because there is so much direct negotiation at meetings. For whatever reason, the process often seems slow, but it actually can be a much more efficient process than litigation, although the parties may not recognize that.

• Anticipating a cheap process. Like the time/speed issue, the cost is relative. In all likelihood, there can be some cost savings, but there will still be a significant time and attorney fee investment, partly because the cases involve substantial assets and other complex issues that cannot be resolved quickly. If you are in a Collaborative case and become concerned about the cost, ask your attorney to give you an estimate of what the cost might have been to get to your position through the litigation system. You may be amazed!

• Believing the process will be easy. While Collaborative Law is more civilized, it will be stressful, difficult and emotionally draining. Nonetheless, it should be less damaging to family relationships and should provide a peaceful means to settle the issues.

• Expecting your attorney to carry the load for you in discussions. You will need to participate more, not less, in this process, but your attorney and the other professionals will help you be better prepared and will help the meetings proceed in an orderly, safe manner.

• Thinking that you can skip some of the steps in the process. Some people want to go right to negotiating the settlement and skip goal setting, gathering information, brainstorming and evaluating the options. Although the process may seem a little rigid to someone in a hurry, it proves valuable in the end because you have an agreement that both parties fully participated in and support.

What are the solutions to unrealistic expectations? The attorneys, mental health professional and financial professional should talk to the parties at the outset to find out their goals and needs, whether they will be flexible and their views of the other party. The professionals need to make sure that the parties understand and really buy into the process. The parties need to understand, in advance, how the process works and be committed to it. They should not insist on trying Collaborative Law if they know that they or their spouse may have unreasonable expectations.

If a party or both parties have unrealistic expectations, it is better to not try Collaborative Law.

How to Tell Your Spouse About Collaborative Law

It's relatively easy for a person facing divorce to discover and embrace the Collaborative Law process. If a person is just looking for confrontation, battle or retribution against their spouse, there will be no interest in Collaborative Law. On the other hand, if someone is looking for a less contentious divorce, and especially if maintaining personal relationships is important (because of children, among other reasons), Collaborative Law has a lot of attraction.

If you and your spouse have already had a discussion about needing a divorce, the question becomes how to inform/convince your spouse about the advantages of the Collaborative approach. If you haven't notified your spouse of your feelings about the marriage, then you need to do so in an appropriate way. See the posting about how to do that in my other blog, Divorce and Family Law in Tarrant County, Texas.

There are many factors for you to consider when deciding how to approach your spouse. Among them are:

• Your spouse's personality. Does your spouse need to feel in charge? Will your spouse take suggestions well if they come from you?

• Does your spouse trust your judgment? Is there a lot of distrust in the relationship now? You can do more directly, if there is trust. If trust is a problem, you may need less information coming from you.

• What is your spouse's attitude about the divorce? Will he or she want to pursue reconciliation or a punitive approach? Is your spouse angry, resigned, happy or looking forward to a divorce?

• What is the best time to bring up the subject? Are there any family or other significant events coming up that would warrant tabling the discussion until another time? Timing is important. Starting a discussion just before going to bed or as your spouse is rushing off to do something may lead to disaster.

• Where should you discuss it with your spouse? At home? Out at a public place? With a counselor? With friends? With family around?

• Should the information come directly from you or indirectly through friends or family? Sometimes your relationship is so strained that you may get a better reception by having someone else bring it up with your spouse.

Once you answer those questions, here are some ideas on different ways to get information to your spouse:

1. Provide written information. This could be a letter from you or your attorney. It could be a brochure about Collaborative Law or an information packet from your attorney.

2. You could bring up the topic generally, but let your spouse research it. Some people like to research for themselves or research may be the better option if trust is an issue. At the least, you should be able to provide some links and resources to your spouse.

3. You could lay out comprehensive information for your spouse to consider. Some parties want to receive a substantial amount of information and then analyze it for themselves. Others want to get a brief explanation and find out the botttom line on any issue.

4. It's usually a good idea to provide a list of qualified attorneys, unless your spouse would feel pressured. If you suggest attorneys, you should offer at least three names, or a Practice Group listing, so that your spouse will not feel like you are pushing a certain attorney or attorneys. It works well if your spouse is good at researching people on the internet.

5. You could give your spouse a book about Collaborative Law. Janet Brumley has a book about Texas Collaborative Law cases. Ron Ousky has a fairly new book, as do Pauline Tessler and Peggy Thompson. Any of those books could be helpful to someone who wants to learn about how Collaborative cases work.

6. In some cases, it may be better to find a mutually trusted relative or friend to discuss the situation with your spouse.

7. There are, or may be, some newer technologies to use to inform your spouse. Web sites and blogs are now important sources of information--you could suggest some. Some attorneys have CDs with information about Collaborative Law which they are happy to provide to you. Finally, You Tube has some short features on Collaborative Law and will certainly have more in the future.

Conclusion: It is important for you to carefully analyze the situation and your spouse's receptiveness to a discussion about Collaborative Law. A thoughtful and sensitive approach during the sometimes delicate time of initially discussing divorce and how to proceed can pay huge dividends and lead to a more peaceful process for you.

Collaborative Law Approved in Washington State

The Rules of Professional Conduct Committee of the Washington State Bar Association has recently issued an advisory opinion approving the use of Collaborative Law to resolve family law matters. The opinion is based on two requirements.

The first requirement is that the attorney must believe that the client's interests will be well served by utilizing the process. Presumably, the lawyer would not recommend it unless that were the case.

The second requirement is that there must be informed consent by the client. Informed consent, in this situation, means that there has been consideration of the client's objectives, the possible benefits and risks of the process, and the availability of other options. Again, those are normally discussed by the attorney and client before the process is chosen and begun.

This is another example of the increasing approval and spread of Collaborative Law through the United States. Clients should ask their lawyers about the advisability of using Collaborative Law in just about any kind of family law case.

Quick Tips: How to Find a Good Collaborative Attorney

Let's assume that you are facing a divorce or some other family law issue. Let's also assume that you know enough about Collaborative Law to want to use the process to resolve your issue. You certainly want to find a knowledgeable and experienced lawyer who is trained in Collaborative Law. Here are some quick tips to help you find the kind of attorney you want.

1. Ask around. That's always a good way to start. Referrals from family, friends, attorneys or other professionals can lead to an appropriate attorney. Find someone who has worked well with someone in the recent past.

2. Research attorneys on the Internet. Look beyond mere statements that the attorneys utilize Collaborative Law. Look for attorneys who discuss their feelings about Collaborative Law and who demonstrate that they have had extensive training in it. Look at attorneys' web sites and blogs to discover their credentials and attitudes.

3. When you call an attorney's office, ask about the attorney's experience and whether or not he or she has been to one or more two-day trainings in Collaborative Law. For an attorney to work effectively in the Collaborative model, it really is necessary to have had at least one two-day training, and multiple trainings improve the quality of work by the attorney.

4. When you meet with the prospective attorney, you should discuss the attorney's approach to cases generally and determine whether Collaborative is the attorney's preferred approach. Some experienced Collaborative lawyers can also utilize some of the Collaborative Law skills in non-Collaborative cases, and that is worth discussing with the attorney.

5. Ask for help on how to discuss the issue with your spouse. That is difficult to do, but a good Collaborative lawyer should be able to brainstorm with you to come up with some ideas.

Utilizing these quick tips should help you find a qualified Collaborative lawyer to help you resolve you family law issue peacefully and effectively. Good luck!