Is Collaborative Law Faster than Litigation?

Is Collaborative Law faster?  Usually, BUT it's not necessarily "fast".

The Collaborative process is deliberate.  We follow a Roadmap that is logical and efficient.

• At our first joint meeting, we usually explain the process, make sure everyone understands it and then get a firm commitment from everyone to follow the process.  We also discuss the goals and expectations of each party.

• The next step is gathering information.  Financial information is gathered by the neutral financial professional (FP).  Information about children's issues, if any, is gathered by the neutral mental health professional (MHP).

• After we have the information to work with, we develop options to consider.  

• The final step is to discuss and negotiate to an agreement.

Other considerations.  

• We always have to remember that we can't go faster than the slower party is willing to go.  There are different levels of emotional readiness for divorce.  It is fairly common for one party to have been thinking and planning for the divorce for a long time.  That party is over the marriage and often is very anxious to get the divorce over with.  On the other hand, the other party may be taken by surprise and may need quite a while to adjust if the first spouse kept everything a secret.

• Sometimes, some preparation is needed to transition out of a marriage.  In most Collaborative cases, the parties prepare budgets to help them make financial decisions.  That takes some time.  A house may need to be sold, refinanced or transferred to one party. It may take a while to divide certain assets.  With children, there may need to be planning about how and when to tell them or how to manage the sharing of the parenting post-divorce.  One party may need to find a job and/or get spousal support for some period of time.

• There may be other reasons to delay final action on the divorce, including health, family obligations, job obligations, housing issues, etc.  Usually things can be wrapped up fairly quickly, but it could take a few months.  For someone very anxious to get the divorce over with, that can seem like a lifetime.

Comparison to litigation.  In litigation, there are numerous things that can delay progress.  Overall, the parties are looking at 9 months or more to reach a final trial in a contested case.  This is because the parties typically have to deal with:

• Temporary hearings
• Other hearings
• Discovery
• Preparation of an Inventory and Appraisement
• Scheduling order from the Court
• Mediation deadline just before trial
• Trial date 9 months or more away.

What sometimes happens is one party has been thinking about the divorce for a long time,  without telling the other party.  When the divorce gets started, the first party is immediately ready for the process to be over because he/she has thought it over and planned everything for months.  The other party is surprised and unprepared and needs time to collect his/her thoughts and then begin making plans.

In a Collaborative case, the party who plans ahead feels like the process is moving very slowly.  The other party feels the opposite.  Gradually, the second party gets up to speed, but it may take a while.  

Even if it does seem slow at first, the Collaborative process will almost always move much faster than a litigated divorce.
 

Is Collaborative Law Cheaper than Litigation?

Is Collaborative Law cheaper?  Probably.

Is Collaborative Law cheap?  Not necessarily, but it's all relative.

The Players.  In Texas, each party hires their own attorney.  Then, the attorneys select a neutral mental health professional (MHP) and a neutral financial professional (FP) to work with both parties.  That sounds like a lot of expense, but keep in mind that the MHP and FP do a lot of independent work in the case at a cost of less than half the charge of just one of the attorneys.

The Process.  We will have a series of joint meetings to  discuss and review facts and issues in the case. (We follow a Roadmap that is a step by step process of setting goals, gathering information, generating options and coming to agreements.)  At the joint meetings, we usually have both attorneys and both other professionals, unless we are just talking about non-financial children's issues.  Then we would have the attorneys and MHP.

Efficiencies. The Collaborative process operates very efficiently regarding creating a parenting plan and gathering and organizing financial records.  We have "offline" meetings with just the MHP and the parties on parenting issues and just the FP and the parties to do the preliminary financial work.

In a litigated case, the attorney typically would be meeting with their client to gather information and formulate a plan on parenting issues.  The MHP is much less expensive and probably more qualified to help the parties than either attorney.

Similarly on the financial issues, in litigation, the attorney would be telling the client what information is needed, then would review whatever was produced and would prepare an Inventory and Appraisement. The FP is much better qualified and less expensive in gathering, organizing and evaluating the finances.  In addition, the FP helps both parties plan and prepare budgets for post-divorce, which is rarely done in litigation.

Comparison in litigation

Hearings.  Especially in hotly contested cases, there are multiple hearings at the courthouse.  That means time off work, preparation time and attorney's fees.  We usually average about three hours at court every time a case has a hearing because we end up waiting around to be heard and then there's the time in the hearing.  And there are the inevitable postponements and resets.

Discovery. In litigation, we usually do discovery, which is a formal process involving written requests for information and as a result, the gathering of voluminous, often irrelevant, documents and photos that have to be copied or put on a disk for the other side.  Parties usually spend thousands of dollars on discovery alone.  Then there are often fights, and more hearings, about whether all the documents requested were produced.

Inventory and Appraisement.  This is like an expanded version of the joint spreadsheet used in Collaborative cases, but with a lot more detail, and each side prepares their own.  That means more than twice the cost.

Depositions.  These are a means of discovery where a witness is under oath and is asked questions by one or both attorneys.  There can be a number of these.  Each client will pay for the attorney's fees and some court reporter cost.

Mediation.  Most cases will settle in mediation.  The problem is that mediation usually takes place after many months, often just before trial.  You will pay the mediator as well as your own attorney.

Trial.  If mediation fails, you will go to trial. In Tarrant County, it usually takes 9 months to a year or more to get to trial.  Trials are also very expensive.

Paperwork. In addition to theses steps, there will be a lot of paperwork, from letters back and forth to pleadings and orders and discovery documents. It all costs money.

Bottom Line:  While Collaborative cases may seem expensive if viewed with no context or comparison to litigation, they actually are usually a lot cheaper than contested litigated cases.  In the Collaborative process, there are no hearings, discovery, Inventory, depositions or trial.  There's usually no mediation and there's a lot less paperwork.

If you want to compare processes, look at all the costs!

Does Shared Parenting Require an Amicable Relationship?

Joint custody is easy to imagine where the parents get along even after splitting up.  What about the significant number of cases where the parents don't like each other?  How can they work together in a shared custody arrangement?

Texas law provides a presumption that parents should be in a joint custody relationship, although that does not mean 50-50 time sharing or any other particular arrangement.  Joint managing conservatorship, the legalese term, is just a title.  The real meaning comes from how the time is shared between parents and how the powers, rights and duties of parents are shared between parents.

So how can parents share parenting if they can't get along?  It's certainly more difficult than when the parties like or tolerate each other.  There are some ways to approach such a situation to assure successful co-parenting.

1.  Focus on the kids first, not the parents.  Try to keep the children's lives has unchanged as possible, keeping in mind that their needs will constantly evolve as they age.  Mainly, don't think in "ownership" terms about "my time" or "my children".  Put the focus on what the children need or want and how they can best be attended to.  Don't make it a control fight between parents.

2.  Add structure.  Sometimes locking down schedules and responsibilities takes away the need or opportunity to pick fights between parents.  If everything is clearly defined in court orders, that should help avoid or minimize the conflict.

3.  Model good behavior.  In the long run, the children will benefit if at least one parent models good behavior.  Hopefully, the other parent will start to follow suit.  If not, keep a stiff upper lip and be the better person.  It's good for the kids.

4.  Practice good communication with the other parent.  Don't be argumentative.  Don't make derogatory  comments about the other parent.  Stick to the facts.  Don't worry about blame.  If there are problems, just fix them.  Be on time and be polite.

5.  Take a class on co-parenting.  Many courts require such a class.  It's best to take a class in person (your attorney can help you find a good one), but you can also take one on line.  It would be great for both parents to take the same class, but it's still good if just one takes the class.  And, as is true in many other matters, refresher classes in the future would be helpful also!

Regardless of how well you get along with the other parent, hopefully you can find some common ground around the children and learn to work together.  Good luck!

Is Collaborative Law a Good Fit for You?

In a recent blog post, Adryenn Cantor, a San Diego, CA attorney included an excellent list of five questions for people to ask themselves to determine if they are a good candidate for using Collaborative Law in a divorce case.  Here are her questions:

1. "Do you want to end your marriage with respect and integrity? 

2. Is taking a rational and fair approach to dividing your assets more important than seeing yourself as a winner and your spouse as the loser in this process?

3. Are your children the most important aspect in this process?

4.  Is saving money, which could go to you or your children more important than spending it on protracted litigation?

5.  Do you want to model for yourself, your spouse and your children how mature adults handle significant challenges?"

The Cost of a Collaborative Case: Is It Cheap? Part 2

There's an old joke about divorce that sometimes goes like this:

Q:  Was your divorce cheap?
A:  No, but it was worth it!

That joke could now apply to Collaborative divorces.  They are not cheap, but, if people must go through a divorce, this process is a much better way to do it.  At the same time, there are some ways to save some money.  Generally, the parties are better behaved and managed and cases are better resolved.

1.     The process allows the parties and attorneys to avoid expensive activities.  In difficult litigated cases, a lot of actions are instigated to wear down the other side.  There are often multiple hearings for temporary orders, clarification orders, modifications, enforcement and other reasons.  It becomes a war of attrition as one side beats up on the other, all the while costing both parties much more money.  Another means of that is using demanding or threatening letters between the attorneys.

       Since Collaborative Law doesn't allow the parties to go to court, that avenue is eliminated.  In addition, there is a lot more direct communication and dealing with the issues in Collaborative cases, instead of posturing.  Plus, the other professionals are closely involved and helping.  For example, if there are visitation problems, the mental health professional will meet with the parties, if needed, to help them resolve the issues.  They can also be addressed directly in joint meetings and there is a great deal more direct communication, even between meetings, among the attorneys and other professionals.

2.     There's better decision-making in Collaborative cases. There are several reasons why the Collaborative process is generally better than litigation.

• The parties participate in all decisions.  In litigation, often the attorneys tend to make many of the decisions, standard guidelines are used or the issue is turned over to a judge to decide.  In Collaborative cases, the parties participate in discussions and no agreement is made unless everyone agrees.
• When needed, neutral experts are readily brought in and the mental health professional and financial professional are normally always involved, so the parties can easily turn to experts in Collaborative cases.
• There is a focus on the future, instead of assigning blame for past problems.  Looking ahead and not looking back saves time and avoids unproductive arguing over fault. It also allows the parties to move ahead without further damage to their relationship.

3.     Finally, there's a greater commitment to the terms of an agreement than there is to the terms of an order imposed by an outsider, such as a judge.  There's more buy-in when the parties participated in creating a plan, compromised with each other and committed to the final terms.  Even though parties should follow an order from a judge, they are going to feel better and usually be more willing to follow their own agreement which is probably slightly (but importantly) different from a judge's order.  That usually means there's more compliance and less fighting post divorce!

 As the old joke suggests, divorce is rarely cheap, but if it's done right, it can be worth it.  If you are facing this difficult time, you should look into using the Collaborative Law process.

The Cost of a Collaborative Case: Is It Cheap? Part I

Some people become interested in Collaborative Law because they are looking for a cheap way to get a divorce.  They assume one lawyer can handle the process and that there will be no fighting as they come to agreements.  Unfortunately, Collaborative Law doesn't work that. There are always two lawyers and the parties often disagree on matters, but we keep the parties focused on the issues and are usually able to come to acceptable agreements even on difficult issues. Fortunately, Collaborative Law can still be a very cost-effective way to handle divorce and other family law matters.

Most of the time, when Collaborative Law is used, the parties can save money in various ways, including the following:

1.     The attorneys don't use unproductive and wasteful discovery methods.  In litigation, attorneys almost automatically use fairly standard, broad discovery requests.  In Texas, we typically send out 25 written questions (Interrogatories) to be answered, 20 to 60 or more specific Requests for Production of documents and records and a standard Request for Disclosure of basic information, and then we do Depositions. Attorneys throw out a broad net to capture as much information as possible and then spend time reviewing the results and piecing the facts together.

       In contrast, in a Collaborative case, we usually have  a neutral Financial Professional (FP) and a neutral Mental Health Professional (MHP) gathering specific information about the finances and the children's issues, respectively.   We don't use written discovery or do depositions.  The parties are given specific lists of documents to provide that deal with the relevant issues specific to their case. The FP and MHP direct the gathering of information and that saves money for the parties because the FP and MHP charge less per hour than the attorneys do, who do the work in litigated cases. The FP puts together a spreadsheet that captures the relevant financial information.

2.     For property valuations, we normally use one neutral expert in Collaborative cases.  In litigation, it is common for each party to have their own expert for appraisals.  In addition to paying for two experts, the parties often pay for depositions and court testimony of the experts, costs that are avoided in Collaborative Law cases.

3.     In Collaborative cases, we don't have expensive court hearings.  In contested  litigated cases, there are often multiple hearings.  In addition to having to go to court several times, the parties face waits and delays whenever they go.  Unfortunately, the courts are overcrowded and overbooked.  That explains why it often takes a 3-hour trip to the courthouse for a simple hearing -- a lot of the time is wasted in waiting.

       In Collaborative Law cases, we don't go to court, except for a prove-up at the end.  Instead we have a series of meetings, usually 1 1/2 to 2 hours each, to work on a pre-set agenda of topics.  When we get together, we are working.  Also, much of the preliminary work is done in smaller chunks of time with individual professionals.

Conclusion
       When people divorce, there are usually complicated, very important issues at stake.  There are no easy solutions for some problems, which means the parties may struggle as they work through them.  With the Financial Professional and Mental Health Professional helping the attorneys, the parties can normally explore the issues and reach acceptable solutions in a safe environment.

       While hard issues usually take a great deal of effort and compromise, Collaborative Law gives the parties the opportunity to be cost-effective, even if the process is not "cheap" or easy.

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!