We Disagree Too Much to do Collaborative!

I recently heard this as a reason an attorney gave for not using Collaborative Law for a divorce.  Obviously the attorney was not really committed to using the Collaborative process to resolve disputes in divorces and other cases and I have to respectfully disagree.

1.  Litigation won't make the disagreements go away.  They just won't be resolved as well as they could have been in Collaborative. There will likely be more conflict.

• Without lawyers trained in problem-solving through Collaboration, the parties will probably have attorneys who go into the traditional steps of conflict-enhancing litigation.  There will probably be much less cooperation between the attorneys as compared to Collaborative attorneys. 
•  In addition, litigation doesn't provide for a therapist or a neutral financial advisor to help the parties create solutions and minimize conflict.
• When the parties can't reach agreements, the issues will probably ultimately be decided, at least in part, by standard guidelines and the judge's own biases.

2.  There's really not "too many disagreements" to use Collaborative.  There are simply better tools to use than litigation provides to handle all the problems. As long as the parties are open, honest and committed to reaching an agreement, Collaborative can be effective.

3.  Every family law case has a lot of disagreements.  We are talking about dispute resolution processes.  There's no reason to limit it to the easiest cases.  The process is not easy.  It requires patience and dedication, but it is a flexible framework that can handle very difficult and unusual cases.  I have seen the Collaborative Law process successfully resolve the following difficult issues:

• Adultery
• Job loss
• Alcohol abuse
• Mental disorders
• Conflicts over parenting styles
• Alienation allegations
• Custody fights
• Long-term illnesses
• Relocation

If an attorney or anyone else ever tells you that there are "too many disagreements" to use Collaborative Law, you need to get a second opinion from an experienced Collaborative lawyer.  Undoubtedly, the Collaborative lawyer will disagree with that assessment!

Why Do a Collaborative Divorce? Types of Cases

There are many different reasons why people may choose to use the Collaborative process for their divorce.  Aside from the advantages of the process, there are certain types of issues that could really benefit from the flexibility and privacy afforded by Collaborative law.  Here are some examples.

• A child with special needs.  Courts usually try to do a little extra, but you are still generally turning over the decision-making to a judge who will try to make an order that is a slight variation from the normal, standard provisions.  In Collaborative, we can bring in a neutral expert to the process.  We would also have the mental health professional who can work with the neutral expert to help the parties come up with an appropriate order.
• Parents with issues.  Unfortunately, the adults sometimes have problems with alcohol, drugs or anger, among other things.  Various addictions may require special help that might not be well dealt with in the court system, and in Collaborative cases, we can work at our own pace, in privacy, until the issues are under control. Again, we can bring in extra help, if needed.
• Stay-at-home parents.  If one parent has been off the career track for a number of years, it may be very difficult and time consuming to find a new career and job. There needs to be some way to provide extra help for that transition.
• Professionals.  Many doctors, lawyers, engineers, CPAs and others don't want their personal issues laid out in public documents.  Public figures, including politicians, are in the same situation. Collaborative divorce gives them the protection of a private process that works outside the court system until the divorce is final.
• Too busy for court?  Some people have really busy or inconvenient schedules.  While all of us would like to think we are indispensable, there are some people whose absence at work really creates problems.  They need the ability to meet at non-traditional times (not at court at 9 a.m. or 1:30 p.m., for example).  Collaborative meetings can be convened at any time on any day when all the parties can get there.
• Convenient meeting place.  The courthouse may not be the most convenient place to meet.  In Collaborative cases, we usually meet at the attorneys' offices, but I have had several cases where we met at the mental health professional's or the financial professional's office.
• Need non-standard visitation or child support.  It is much easier to get creative with visitation or child support in Collaborative cases.  In litigation, the guidelines are almost always used.  In Collaboration, the guidelines are just an option and we usually consider several options.

If you are facing a divorce and any of the above situations apply to you, please look further into using Collaborative Law.  It will probably be your best avenue for meeting your needs.

What's the Role of the MHP in a Collaborative Divorce?

Most people think of therapists as "shrinks".  They do psychotherapy or psychological evaluations. 

In Texas Collaborative Law cases, we generally use a neutral therapist or mental health professional (MHP) to work with both parties.  The MHP does not do therapy for either party.  Instead, we rely on him/her to help in many other ways.

Here is a list of some of the ways MHPs help in Collaborative cases.

1.  Manage meetings as a neutral.

2.  Help the parties stay on their best behavior.

3.  Help the parties learn how to communicate better with each other.

4.  Enhance the listening skills for everyone.

5.  Make sure everyone is heard at joint meetings.

6.  Help the attorneys realize when a party is having a difficult session.

7.  Help the parties create a parenting plan.

8.  Add another perspective for the attorneys as the case progresses.

9.  Help the parties work on and refine their goals for the process.

10. Answer parenting questions and help parents decide how to talk with their children.

As you can see, the MHP has a major role in Collaborative cases.  As an attorney who worked in Collaborative Law before therapists were brought into the process, I would emphatically state that MHPs are essential to the success of the process.  We can get better results, with less stress and in a shorter time, when we involve a therapist from the beginning.  I always insist on that!

Just the Facts: Starting Without Assumptions

It is probably human nature to face the unknown by making assumptions.  That can help a person prepare for new circumstances, decisions and consequences.  Sometimes the assumptions are helpful and sometimes they are detrimental.  Either way, making assumptions is an easy way to approach a new situation.

There are three areas where assumptions are commonly made when someone is facing a divorce.  Problems may result unless you withhold judgment and focus on facts.  Here are some examples.

• Assumptions about the legal process.  Unless someone has recent, extensive experience in the legal system, there are usually a lot of mistaken ideas about how the legal process works.  That is especially true of the relatively new process of Collaborative Law.  Rather than listening to your friends, family and friends of friends, it is better to go see a Family Law attorney who has been trained in Collaborative Law.  Don't get an explanation of the process from someone who is not qualified to tell you about it.  A good Collaborative Lawyer will tell you how Collaborative could work in your case and how mediation or litigation might play out.

• Assumptions about how your spouse will act.  While you need to be prepared for the worst, don't assume it will happen.  Likewise, don't assume everything will go absolutely smoothly.  Spend some time with your lawyer and maybe a counselor to try to figure out how to best deal with your spouse.  You might be pleasantly surprised by how your spouse reacts to a "nice" approach.

• Assumptions about whether you will be satisfied with a particular approach.  Again, talk with a professional to find out your options and how they might affect you.  If you think you need a "pit bull" representing you, you should consider the increased cost and the damage to family relationships that usually result from that approach. If you don't think you should negotiate, consider the consequences of that course of action.  Talk with an experienced attorney who can tell you how such actions will impact you and your pocketbook.

The bottom line is that you are better off getting the facts from an experienced and well-trained attorney who can help you decide your best course of action.

Restructuring the Family the Collaborative Way

In a typical litigated divorce in Texas, and probably most states, the Judge will impose a standard set of guidelines for most matters relating to the children.  In many of those cases, the resulting order doesn't exactly fit the needs or facts of the case.  Many times, there's a random standard possession schedule for the children, as well as a standard child support order.  Special needs due to work, geography, health, school or any other factors are often not considered.  The big advantage of that approach, "one size fits all", is that it's easy.

Unfortunately, easy isn't always good or appropriate.

What can be done using Collaborative Law?
In contrast, parties using the Collaborative Law process can create a plan for taking care of the children that really benefits the children and the parents.  Here are some things that can be done , as needed, because we customize terms of orders when we use Collaborative Law.

1.  Set up rules for dating for the parents, including how and when to introduce a new significant other to the children.  New relationships can be very stressful and unsettling for the children.

2.  Share parenting responsibility according to need, past experience, education, ability, interest and other factors for the parents and the children. Taking into account the strengths and weaknesses of each parent can yield a more practical and effective sharing of responsibilities.

3.  Make sure important things are paid for.  Plan ahead for needed expenditures, such as field trips, vacations, school events, sports, proms and other activities.

4.  Figure out how and when to coordinate activities and decision-making about activities.  Come up with a way to amicably communicate between the parents for future situations.

5.  Work out ways to resolve or avoid future disputes.  Get some tie-breakers, such as allowing a pediatrician to resolve medical issues or a teacher or counselor to resolve school or other issues.

6.  Cooperate to share time during the holidays, not using arbitrary schedules.Communicating in advance about wants and plans can help avoid holiday stress.

7.  Customize the regular scheduling and sharing of the children. Be creative and be willing to make changes.

8.  Plan and pay for college.  That includes the preliminary steps of visiting schools, preparing for college, applying and choosing a school, taking the child to school and getting them back home for holidays and summers, etc.  There's plenty of involvement for everyone.

9.  Plan for age-related future issues and new expenses for school, car, activities such as sports, music and  extra-curriculars.  Kids will be more expensive for new reasons as time goes by.  It helps to plan for that, as much as possible.

10. Model good behavior for your children.  Show them that parents can be respectful and cooperative even after a divorce.  Help them learn how to deal with difficult situations without resorting to bad behavior.  Show maturity.

If the parents are really concerned about the best interests of the children, Collaborative Law gives them the opportunity to take care of the kids in many different ways.  Parents should meet with a trained Collaborative lawyer to consider that process before they file for divorce.

Do You Want a Civilized Divorce?

Unfortunately, most divorces are somewhat acrimonious.  It's a rare divorce where the parties are rational and cooperative with each other.  There are many reasons for that and it's hard to change someone's attitude when they are starting a divorce.

Collaborative Law offers the choice of having a civilized divorce where the parties can be around each other and be treated respectfully.    In addition, the parties listen to each other's concerns and try to resolve matters by working together.  Most people can switch to that mode of cooperation, but it takes a certain framework and a team of trained professionals.

Why do some people not want to try to have a civilized divorce?  Here are some reasons.

1.  Some people are extremely self-centered.  They focus on themselves and don't try to consider what their children or spouse might want or need.  These people just can't understand or appreciate someone else's point of view.

2.  Some people are very angry.  Often, they are out to "win" and are willing to do whatever it takes to win. They don't care about damage to relationships (or they blame the collateral damage from the divorce on their spouse, and take no responsibility for themselves).  In their mind, they have been wronged and they want revenge, and a win.  There's no appeasing them.

3.  Short-term thinking is another problem.  Some people don't think ahead, even a short distance.  They are only concerned with the very immediate future and don't plan ahead or worry about how things will be later.

On the other hand, I like to think there are some pretty compelling reasons to try to be civilized, act rationally and to try to preserve relationships.  Consider these points:

1.  Would you like to be able to attend weddings and holiday events in the future and be comfortable with everyone there?  That seems like an attractive possibility.  It's much better than the alternative of a stressful and uncomfortable time seeing old "enemies".  It's much better to remain friends.

2.  Would you like a less-stressful process for divorce?  We can't eliminate all stress from divorce, but we can make it much easier for everyone to coexist and to treat each other respectfully.  We can make it much less horrible if you use the Collaborative process.

3.  Would you like to avoid the excessive costs of a battling divorce?  Working together through the Collaborative process will help you by allowing you use a single, neutral expert rather than both sides hiring separate experts.  You can also save money by not using the strategy of repeatedly attacking the other side in an effort to wear them down so they will give in to your unreasonable demands.  Instead of all that, Collaborative Law has you focusing on what's important for each party and working together to achieve those goals.  You don't waste time and money on extraneous battles fought for strategic reasons which don't really make resolution any more likely.

If you're not too self-centered or angry or hooked on short-term thinking, you should consider using Collaborative Law if you get involved in a divorce.  Consult with a trained Collaborative lawyer to decide if Collaborative would be a good fit for you.  Good luck!

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!