Trick or Treat -- Are There Always Just 2 Choices?

Tonight, most folks will be inundated by little monsters, princesses and really cute little creatures who all seem to be knocking on doors and saying the same thing, "Trick or Treat!". Hearing that phrase got me thinking about how so many things in life seem to be either-or situations: black or white, young or old, smart or dumb, rich or poor, etc. We've grown accustomed to thinking in dichotomies with seeming opposites being the only choices.

In reality, not only are there gray areas (gray color, middle age, normal intelligence, middle class, for examples), but if we look, we can usually also find alternative choices. One of the most significant benefits of Collaborative Law is that it actively promotes the creation and consideration of new options through the decision-making process.

The Collaborative process usually involves following several steps. First, the goals are set out for each party so everyone knows what needs to be accomplished. Second, information is gathered about the parties' situation. Third, the parties brainstorm and come up with as many options as they can. Fourth, the options are evaluated by the parties. And fifth, the parties negotiate and reach an agreement. That framework has proven very successful in helping parties create solutions that they both like.

While all the steps are important, the brainstorming session is often the most interesting and enlightening. When they try, parties are able to come up with great new ideas and solutions that are acceptable to both parties. That is a vastly different situation from old-fashioned litigation which relies mostly on standard guidelines and formulas, as well as "what the judge always does in similar situations".

For those interested in finding new ways to solve problems, Collaborative Law is the way to go. For those who find security in the tried and true either-or responses to issues, litigation is the appropriate approach. Collaborative Law is sometimes difficult, but ultimately is rewarding in many ways as I have previously discussed on this blog. Hopefully, you won't be scared to try something new and challenging, even on Halloween!

The 1st Joint Meeting -- Building a Foundation

Many people going through a Collaborative divorce, especially those in a hurry (which is usually just half of the parties), consider the first joint meeting to be a huge waste of time. They are anxious to get down to business and start negotiating. They don't like to discuss boring topics, such as how the Collaborative process works (the attorneys will manage it) or how they should behave (they'll be nice). They don't like to read through the Participation Agreement with the attorneys or the agreement used to hire experts. Often, the parties think that they don't need to read such documents because they won't understand them and/or the attorneys wouldn't have the parties sign something unless it was the right thing to do. For many people who are starting the divorce process, they don't want the divorce and often they are in a fog and not thinking or understanding well.

The Collaborative process requires a commitment by both parties to a number of principles that are explicitly spelled out in the Participation Agreement. It is important for the parties to discuss and learn how the process works in actual practice. We don't want someone to start the process based on mistaken assumptions about how it works.

The typical first joint meeting provides a foundation for the parties and the professionals to be sure they understand the process and they really want to commit to it. There is the little matter of the attorneys having to withdraw if the process breaks down. That needs to be well understood by the parties. It's actually the incentive for the parties to keep trying to find solutions rather than resort back to litigation. It's a significant financial cost to both sides, so it behooves everyone to be clear and in agreement about the process. The steps to be followed need to be understood. The expectations about behavior should be discussed as well. Finally, setting the goals for each party is an essential first step in the problem solving process.

While it may seem like a waste of time to some people, the first joint meeting actually is an essential, critical step in the Collaborative process. We apologize if it seems boring, and if it means that you can't start negotiating immediately. It's like when a young person starts to drive: s/he is very anxious to get behind the wheel. They have seen driving all their life and are sure they know how and what to do. Parents know that their children must be trained to drive and part of that is learning the rules and being patient. We need a little bit of that same patience in the Collaborative process. Building a good foundation increases the probability of success in houses and in Collaborative Law cases.

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.

Another View of How to End an Impasse

One of the consistently best family law blogs is the Maryland Divorce Legal Crier by James J. Gross. A few days ago, he had a post about the same subject I recently discussed. Here's his take on impasse.

"What happens when an irresistible force meets an immovable object? A lawyer makes a settlement proposal for a divorce client. The other side sends back a counterproposal, which the client doesn’t like.

'What do you advise next?' asks the client.
'Send back another proposal with some concessions,' the lawyer says.
'What if I don’t want to make any concessions?'
'Then you are at an impasse.'

There are several ways to break an impasse.

(1) Litigation. The ultimate way is to have a judge decide. But this is expensive, time consuming and uncertain in outcome.

(2) Keep Talking. Explore other options to meet the needs of each party. I have been in negotiations where a creative idea just seems to fall out on the table in the conversation that had not been there before.

(3) Segment the Problem. Break the dispute down into separate smaller pieces and try to get agreements on one piece at a time until you have solved the whole problem.

(4) Bring in an Expert. You can bring in an expert to help break an impasse such as a therapist for issues involving children or a financial planner for issues involving money.

(5) Do Nothing. One option is to just do nothing until somebody blinks. Sometimes I have told the parties, 'You are twenty thousand dollars apart and it will cost you each ten thousand dollars to litigate this case. Does anyone have any ideas?' Then I sit in silence for a minute, two minutes, sometimes ten minutes, until finally someone says, 'Well I’ll split the difference if you will.'"

These are some good ideas, at least 2-5 are. The first idea of using litigation isn't a possibility in a Collaborative case. I have used all of the techniques at different times and they usually help resolve the issues in dispute. There are bound to be some other successful strategies for breaking out of an impasse. Does anyone want to share their ideas?

Why Professional Athletes Have Prenuptial Agreements

After a brief flurry of news reports about the impending break-up of superstar baseball player Alex Rodriguez's marriage, a few recent stories came out announcing that an agreement had been reached and that there would be no further information released. It turned out to be a relatively quiet divorce for several important reasons.

• First, there had been a prenuptial agreement completed about a month before the wedding. That agreement apparently settled many or most of the issues. It helped avoid a lot of litigation and undoubtedly saved a great deal of attorneys' fees for both sides. While prenuptial agreements may seem very expensive when they are negotiated and drawn up, they usually turn out to be a great investment because they minimize the costs of a divorce or they might even help preserve a marriage (when divorce options are limited). Prenuptial agreements may seem "unromantic", and they are, but for a second or third marriage, the odds of going through a divorce are going to be a little higher. Besides, doing a prenuptial agreement does provide more disclosure between the bride and groom than occurs in many relationships, and they force the parties to think more about the future, good or bad.


• Second, there was not a lot of negotiating happening in the press. In celebrity divorces, there's often a lot of damage done because of what gets published, televised or discussed. Either the parties recognized that they both had something to lose by going public or the prenuptial agreement may have included penalties or incentives for privacy.


• Third, the parties obviously had attorneys who recognized that hanging out the couple's dirty laundry would end up soiling both of them. They were able to protect the interests of both parties by working quickly and quietly. Sometimes less is more, and that was the case here. Both parties end up losing when they start slinging mud. Professional athletes need to keep a good image for marketing purposes. Unfavorable press can result in loss of endorsements and lost opportunities for outside projects and income.

Professional athletes, whether they play in the NBA, WNBA, NFL, NHL or MLB, would all be well advised to seek a prenuptial agreement if they are getting married. It can save them a lot of money later on and make their lives more peaceful and productive. A prenuptial agreement will probably save substantial attorney fees in case of divorce and will limit the financial exposure in that situation. It can also help the athlete and the spouse address and decide financial issues for the future.

Why use Collaborative Law? Basically, preparing a good prenuptial agreement requires long-range planning by the athlete and his/her spouse, with a financial advisor as well as an attorney. Instead of just living for today, professional athletes should take the time to look to the future and preparing a prenup is a great way to get started. The best practice is for each side to have their own attorney. That helps balance the power in the relationship and makes sure that both sides are heard and understood. Collaborative Law is a very effective way to negotiate a prenuptial agreement. There is disclosure, representation of both parties and other professionals can be used as needed. No agreement is established unless both parties voluntarily agree to it.

One final point: Don't wait until the last minute! A complex agreement takes time to prepare. You want it done right and you want both parties to be comfortable with it. To create a custom agreement, information must be gathered and analyzed, a plan must be put together and an agreement must be negotiated. If it's not done right, you are just wasting money because a court can find it to be invalid. It takes time to get all the work done. In addition, waiting until the last minute will only multiply the stress related to getting married, probably resulting in two very unhappy people. Start early.

Thanks to the My Family Law Celebrity Divorce Blog for their post on this case.

Is Collaborative Law Cheaper than Litigation?

Answer: Sometimes, but it's really hard to directly compare the two systems.

Collaborative Law involves having a series of relatively brief meetings to work through to settlement in an organized and efficient manner. Including the preparation and debriefing times for each meeting, my experience is that there is often a three-hour block of time expended for each meeting. That can add up to some significant time if there are many meetings. Of course, the contrast in litigation is that there would probably be a number of court appearances in a case with complex property to divide or with custody issues, so the actual time commitment may not be greater in Collaborative cases. There are some other factors to consider that would seem to indicate that Collaborative cases can save time when compared to litigation. Consider these.

• A Collaborative case normally (in Texas, at least) involves a single neutral financial professional (FP) and a neutral mental health professional (MHP). In litigation, the cost is usually doubled because each side hires their own expert. That sometimes results in hiring a third professional to break the tie if the original two experts don't agree on the issue. A single child specialist is often used in Collaborative cases, or the regular MHP may act as the child specialist. That compares with litigation where it is not unusual to have two or three experts on children's issues.

• The parties ask for and produce only the necessary information in Collaborative cases instead of using standardized, boilerplate requests for voluminous information, much of which is never used. Collaborative Law saves trees, time and money by focusing only on the relevant issues for discovery, which is done informally. There's no playing games with objections and motions for sanctions. The appropriate information is produced and used.

• The parties and attorneys don't waste a lot time arguing and posturing. Collaborative Law uses interest-based negotiating, instead of positional bargaining. We start off the process by establishing and clarifying the goals, needs and interests of each party. We creat solutions for achieving those goals rather than taking arbitrary positions and moving slowly to a compromise.

• The parties don't file motions and set hearings with the court. That can be very time consuming and expensive for the parties. Obviously, not having court hearings means that the parties don't waste half a day waiting around the courthouse for each hearing.

• The parties don't have to wait for distant court dates. The process moves along as fast as the parties both want and they can finish it when they are ready, rather than waiting for the court to have time for a hearing or trial.

• Using the MHP results in more pleasant, efficient and effective work sessions. The meetings, although sometimes difficult and emotional, are improved by having the MHP work with the parties before, during and after the joint meetings. The MHP helps everyone operate at a higher, more adult level, and therefore they can get more done and the stress is greatly reduced for all. This is not to imply that the process is emotionally easy. Actually, it is often very difficult for both the parties and the attorneys, but the process can be effective because it utilizes the experts and trained attorneys who all work for the common goal of an agreement that benefits both parties.

• Collaborative Law cases normally would not have depositions and there would be no depositions of the parties. That saves money and a great deal of stress that commonly occurs in contested litigation cases.

Although it is fair to say that a Collaborative case is probably cheaper than a litigated case, there really is no way to absolutely prove that because no two cases are alike. Nevertheless, the list above includes a number on money-saving innovations in Collaborative Law.

Texas Collaborative Law Blog Honored

The Texas Collaborative Law Blog received an honor today when it was named the LexMonitor Blog of the Day. Here is a link to the notice. It is a very nice recognition that is greatly appreciated. LexMonitor is a highly respected daily review of legal blogs and journals. We appreciate their kind review.