The Collaborative Law Process
Resolving Family Disputes With Dignity
What is the Collaborative Law Process?
How does the Collaborative Law Process Work?
The Structure - The Written Collaborative Law Participation Agreement
The Process - A Problem Solving "Road Map"
More Than Just Lawyers - A Team Approach to Solving Family Disputes
Advantages of Settling Family Dispute in the Collaborative Process Verses the Litigation Model
Differences Between Mediation and the Collaborative Law Process
More Information About the Collaborative Process
Conclusion
The court system's litigation process is often not a
"family friendly" or a "child friendly" environment to
resolve family disputes such as divorce, custody or
child support issues. Parents, spouses, relatives and
friends are sometimes forced to take sides in a
courthouse dispute that pits the parties against each
other in a litigation "war."
Families participating in the court system's litigation
process risk the destruction of family relationships,
financial destruction and long term emotional wounds as
a consequence of bitter courtroom battles.
Over the course of the last ten years, lawyers, mental
health professionals and financial professionals have
been working to develop the collaborative process as an
alternative to the litigation process to resolve
emotional family disputes such as divorce, custody and
child support issues with as little damage to
relationships and family finances as possible. The goal
of the collaborative process is to provide a way to
resolve family disputes that is more "user friendly"
than the traditional litigation process.
While there will always be cases where people will need
the power and force of hte court system to protect and
defend rights, there are many family disputes that can
be resolved more peaceably and less destructively using
the collaborative process.
In short, the collaborative process is a settlement
process that focuses on helping families resolve their
disputes without going to Court. The collaborative
process focuses on creating a safe environment for the
parties to express, negotiate and resolve conflict
without going to court.
The collaborative process works by using three
approaches to resolving family disputes. First the
collaborative process has a well defined set of "ground
rules" and structure in the form of a written
"collaborative law participation agreement" that all
parties agree to and sign at the beginning of the case.
Second, the collaborative process follows a step by step
"road map" that guides the parties through logical and
orderly steps to help the parties define, discuss and
resolve their conflict. Third, the collaborative law
process often involves neutral mental health and
financial experts as part of a collaborative team to
provide neutral expert advice and guidance to help the
parties and their attorney's more efficiently resolve
the dispute.
A true "collaborative" case is one where the parties and
their attorneys have signed a detailed written
"collaborative law participation agreement" that
contains the following commitments and agreements:
1. A commitment not to go to court
to resolve any dispute between the parties. The
parties can "opt out" of this commitment in the
event either party becomes dissatisfied with the
process or in the event of an impasse.
2. Agreements requiring the
parties, the attorneys and other professionals to
treat each other with civility, dignity and respect
in the collaborative process to create a safe
atmosphere to express and resolve conflict in a
civil manner.
3. A commitment to concentrate on
interest based negotiations verses purely positional
bargaining.
4. Commitments requiring full and
honest disclosure of financial and other information
by both the parties and the attorneys.
5. Commitments which create a
structure and time line for the resolution process.
Schedules are created by agreement rather than
mandated from the court.
6. An agreement that if the
parties impasse or opt out of the collaborative
process, the collaborative lawyers cannot represent
either party in litigation between the parties.
7. Commitments from the parties to
not spend funds outside the normal and ordinary
course of conduct or make major financial changes
without notice and agreement by all parties.
8. Agreements to use only mutually
selected neutral experts. These experts cannot
testify in future litigation between the parties
unless the parties so agree.
A major part of the collaborative process is the step by
step "road map" that guides the parties toward a
resolution. In a nutshell, the collaborative process
has six basic steps that take place during a series of
joint meetings in which all parties participate:
Step 1. Establishing Ground Rules.
The parties discuss and decide whether or not to use the
collaborative law process, discuss and agree to the
ground rules of the process and sign the detailed
collaborative law participation agreement.
Step 2: Determine the Goals, Interests and
Concerns of the Parties. The parties spend
time developing each party's interests, concerns and
goals and the shared interests of both parties. The
parties also discuss the interests of the children if
children are involved.
Step 3. Handle Temporary Issues.
The parties discuss and negotiate resolution of any
immediate temporary matters that need to be addressed.
Step 4: Gather Information. The
parties gather and exchange whatever information is
necessary for the parties to develop and evaluate
possible settlement options.
Step 5. Brainstorm Options. The
parties discuss and develop as many possible solutions
and options to resolve the conflict as possible.
Step 6. Evaluate the Options.
The parties discuss and evaluate the consequences of the
available options and solutions and select from those
options the best available option that both parties can
agree is acceptable.
The collaborative law process often stresses and
encourages the use of a "team" approach to resolving
family disputes. The team approach attempts to make the
best use of each team member's area of expertise.
1. Attorneys. The
collaborative "team" will always include an attorney for
each of the parties. The collaborative process requires
an attorney for each party - one attorney cannot
represent both parties. For the process to be
successful it is important that both attorneys be
trained in the collaborative process. The attorneys
participating in the collaborative process serve as
legal advisors and advocates for their clients but try
to participate in the process more as negotiators,
educators and facilitators than gladiators or
litigators. Because neither collaborative lawyer can
ever appear in court against either party, the lawyers
are free to be more candid and conciliatory in their
discussions in the collaborative meetings.
2. Neutral Mental Health
Professionals. Part of the collaborative
process team is often a collaboratively trained mental
health professional who serves as a "communications
facilitator." The communications facilitator is a
mental health professional trained and experienced in
helping people manage their emotions and communicate
constructively in an emotional atmosphere. There is a
saying or concept that "men are from Mars and women are
from Venus," When men and women get divorced and when
there are emotional issues in that divorce, husband and
wife, or mom and dad may communicate as if they are a
lot further away from each other than Mars and Venus.
Lawyers have little or no formal training in how to help
people deal with overwhelming emotions. Much of what
lawyers do as a matter of routine affects people in an
emotional way that is often unintended by the lawyer.
For years, lawyers have been struggling to help clients
through an emotional process while for the most part
being untrained and unqualified to address emotional
issues that confront and at times overwhelm clients.
Some say family law is ten percent legal/financial and
ninety percent mental/emotional. If is is so, why not
bring someone into the settlement process who is
actually trained and skilled at managing the emotions of
the parties and their lawyers in the negotiating
process?
Having a neutral communications facilitator involved in
the joint collaborative meetings can be invaluable.
They can serve to enforce the communications and
behavioral ground rules, help the parties manage
emotional eruptions that develop during collaborative
process and help both the parties and their lawyers
communicate and negotiate more effectively with each
other.
3. Neutral Financial Professionals.
Another common collaborative process team member is a
collaboratively trained neutral financial professional.
The financial professional's role is to provide neutral
financial advice and financial planning to the parties,
help the parties gather financial information and help
the parties create and evaluate optimal financial
solutions to their problems. Many times using a neutral
financial expert can help avoid situations where
legitimate, useful settlement options are rejected
simply because the idea is "his" idea or "his lawyer's"
idea. Sometimes a spouse can better hear a financial
idea or financial reality if it is delivered by a
neutral voice instead of from one of the parties or
their lawyers. Using a neutral financial expert can
also help resolve or reduce arguments concerning
financial issues such as the value of assets, the
character of assets as separate or community property or
tax issues in a cost effective manner.
4. Neutral Child Experts.
In the collaborative process, the parties
routinely involve a collaboratively trained mental
health professional with expertise regarding children
and divorce to help the parties come up with a workable
parenting plan for the children. This neutral mental
health professional cannot testify for or against either
party. Having a neutral, non-testifying child expert
helps reduce emotions by creating an atmosphere that is
less blame oriented and more solution and problem
solving oriented. The neutral child expert helps the
parties focus on finding a plan that will work for the
children rather than focusing on each party's faults or
assessing blame for he situation with the children.
There are numerous dispute resolution processes
available
for people to use to resolve their family law disputes.
They range from getting things worked out at the kitchen
table to having a full blown jury trial at the
courthouse. Regardless of the dispute resolution
process used, most family law cases settle without
ultimately going to court.
A question that confronts both lawyers and their clients
is -- if the case is likely going to ultimately settle,
which process is better to use to achieve the
settlement, the collaborative law process or the
litigation process handled with the primary goal of
settling?
In many cases it may be more advantageous for the
parties to attempt to settle using the collaborative law
process. In other cases, abuse or family violence
issues, the stubbornness of the opposing party or their
lawyer, the existence of an emergency, the viciousness
of the dispute or other factors may dictate that the
best course for a party lies in staying in the
litigation process and keeping the courthouse more
accessible.
Collaborative law is one of many dispute resolution
options available for parties to resolve their
disputes. The best dispute resolution option to use for
each case will depend on the facts, finances, goals and
personalities involved in each dispute. No one dispute
resolution process will be right for every case.
However, in many cases the collaborative law process
will have many advantages over trying to resolve the
dispute in the litigation process. The following is a
list of advantages that are often found in comparing the
collaborative law process to the litigation process.
1. In the Collaborative Law Process
the Focus is Solely on Settlement.
If most cases settle, why not use a settlement process
rather than a litigation process to settle the case.
The collaborative law process is designed with the
principle goal of helping people increase the chances
that they will reach a settlement and settle in a way
that is less destructive financially and emotionally to
the parties and any children that may be involved. In
the litigation process the whole process, in some
fashion, is arranged in and around preparing for trial
that ultimately may not occur. Settlement is certainly
a part of the litigation process but settlement is not
the core principle which grounds the numerous rules and
procedures that govern the litigation process.
2. In the Collaborative Law Process
Everybody is More Likely to be on the Same Page
Perhaps one of the greatest benefits of the formal
collaborative law process is that when the formal
collaborative law participation agreement is signed
there is no doubt that the parties and their lawyers are
serious about settling the dispute. Signing a formal
collaborative law participation agreement commits the
parties to obligations of full disclosure and commits
the lawyers to withdrawing in the event the process is
terminated. This is a serious commitment to attempt to
settle from both the parties and their lawyers. In the
litigation process, each party's commitment to settling
the case may be different, undisclosed or misperceived.
3. The Collaborative Law Process
Creates a Road Map for Settlement vs. a Road Map to the
Courthouse.
The collaborative process follows a six step process to
resolve conflict: 1) establishing
ground rules by signing the collaborative law
participation agreement; 2) determining
each party's goals, interests and concerns; 3)
gathering information each party may need or want in
order to be in a position to negotiate: 4)
addressing temporary issues; 5)
brainstorming settlement options and solutions; and
6) evaluating those options and
solutions and selecting from the available options the
one that best meets as many of the parties' shared and
competing goals as possible and that both parties can
accept.
In the litigation process, there is no formal "road map"
or process to follow for settlement discussions.
Settlement discussions in the litigation process usually
happen when one party or the other decides to
communicate a willingness to discuss settlement or the
parties are ordered to mediation by the court. The lack
of a settlement "road map" can lead to problems in the
settlement process because the parties are not "on the
same page" about even how or when to approach settling
the dispute. This can lead to misperceptions,
misunderstandings and problems. Sometimes it is helpful
for the parties in distress to know what is going to
happen and when things are going to happen. Having a
road map for settlement helps people know what to expect
and when to expect it.
4. The Collaborative Law Process
Creates a Less Emotionally Volatile Atmosphere.
In the collaborative law process the parties commit to
follow written "expectations of conduct" aimed at
keeping communications during the collaborative process
civil, respectful and constructive. The effect of even
having these rules and discussing them between the
parties helps defuse the emotional atmosphere in the
dispute. In the litigation process, discussing or
agreeing to such rules if done at all is usually done in
a less explicit manner.
5. The Requirement that the
Collaborative Lawyers Cannot Later Litigate Defuses the
Settlement Atmosphere Dramatically.
In the collaborative law process, the lawyers involved
cannot litigate against each other or the parties. This
requirement has the effect of enormously defusing the
emotional and egotistical tension in the room. Although
tensions and egos can get strained in the collaborative
process, the collaborative lawyers will never be able to
actually fight each other or attack the other party in
court. This has the general effect of making both the
lawyers and parties approach each other in a more
collaborative and conciliatory fashion. Additionally,
because the involved lawyers will not be able to
personally carry out any courtroom strategy or tactic,
when courthouse options or likely results are discussed,
they are discussed in a less personal and less
emotionally threatening way.
6. The "Team" Approach to the
Collaborative Law Process is Better Engineered for
Dispute Resolution.
Many collaborative law attorneys encourage their clients
to use the "team" approach to the collaborative law
process. Under the team approach, a neutral mental
health professional serves as a "communications
facilitator" and a neutral financial professional serves
as a neutral financial expert for the case. Using these
neutral professionals provides the process with a
neutral voice and perspective throughout the process.
The presence of a neutral voice in the process often
helps avoid or resolve impasses and helps redirect and
diffuse conflict away from the parties involved and at
the problem that is in dispute.
The usual role of the neutral mental health professional
is to manage the emotional issues of the case, keep the
parties and lawyers communicating constructively and to
help the parties work through issues involving their
children or other emotionally charged situations.
The usual role of the neutral financial expert is to
gather, analyze and explain financial information,
prepare inventories, prepare spreadsheets, assist the
parties in evaluating the short and long term financial
effects of settlement proposals and help in generating
financial solutions. Sometimes financial information
that has been prepared by a neutral financial expert
will be more easily accepted or trusted because the
information is coming from a neutral perspective instead
on one of the parties or their lawyers.
Because these professionals are neutrals they provide
the collaborative process with a neutral voice
throughout the process. Many times a solution can be
seen or suggested by a neutral that cannot be seen or
suggested by a neutral that cannot be seen by the
parties who are engrossed in their own perspectives.
Additionally, sometimes a suggestion for resolving the
dispute can be more easily heard by the parties when it
comes from a neutral voice rather than one of the
parties or their lawyers.
7. The Collaborative Law Process Has
More Solution Oriented Tools and Processes for
Children's Issues.
In the litigation process, when mental health
professionals work with the parties or their children in
either a therapeutic or forensic capacity, they are
likely to be called as a witness for or against one of
the parties if the case ends up going to court. This
can often interfere with therapy or problem solving
because the parties may be more focused on painting the
other side as bad or themselves as good rather than
focusing on finding solutions to their children's
problems. In a litigation environment, establishing who
is to blame for problems is often the central focus of a
dispute.
In the collaborative law process, the focus is not on
establishing blame -- the focus is on solving problems.
Because neutral child experts in the collaborative law
process cannot be called to testify for or against
anybody, the parties and the therapist are better able
to focus on problem solving instead of fault finding.
The role of a therapist working with children's issues
is a collaborative case is not to function as a judge or
jury but to function as a facilitator.
The problem solving orientation of the collaborative law
process is often especially helpful where children are
concerned. In the litigation process, because the
parties are never more than a few days away from a
possible courthouse confrontation, they have to be
constantly concerned on some level about how they are
gong to attack their opponent and defend themselves.
This blame oriented mentality is often tremendously
distracting from trying to find solutions for children
in distress.
8. The Collaborative Law Process is a
Less Destructive Dispute Resolution Process for
Businesses.
The litigation process can be very detrimental to the
financial health of a family business. Sometimes the
expense of litigation, the overwhelming demands for
voluminous document production, the effects of having
employees being compelled to testify in trials or
depositions and other fallout from the litigation
process can literally destroy the business the parties
are arguing about.
The collaborative process aggressively attempts to help
the parties resolve their conflict without having the
process destroy or diminish the value of the family
business.
9. The Full Disclosure Assurances of
the Collaborative Law Process Reduce the Risk of Making
a Bad Deal.
Collaborative law participation agreements are required
by statute to include provisions providing for the "full
and candid exchange of information between the parties
and their attorneys... Texas Family Code 6.603(c) and
153.0072(c). The form collaborative law participation
agreement approved by the Collaborative Law Institute of
Texas has numerous provisions requiring full
disclosure. Included in the form collaborative law
participation agreement are provisions that:
- Require a party's attorney to
terminate the collaborative law process if a party
insists on refusing to disclose relevant
information.
- Awards to the innocent party
100% of any community assets that are later found to
have been intentionally not disclosed.
In the collaborative process, the requirement of full
disclosure exists without having to be triggered. In
other words, even if the other side does not ask for the
information, the information must be disclosed if a
party putting him or herself in the other party's shoes
would want to know the information prior to making a
settlement decision.
In the litigation process, there are rules governing
disclosure but they are vastly different than in the
collaborative law process. Full disclosure is not an
assurance of the litigation process. In the litigation
process, full disclosure often depends on first
complying with the rules of discovery and procedure. In
the litigation process, parties are required to disclose
information that has been requested in the proper manner
and is not subject to some procedural or evidentiary
objection. Parties trying to settle in the litigation
process often forgo formal discovery and without formal
discovery, there are usually no affirmative duties of
full disclosure imposed or required of the parties
unless other agreements are made.
The full disclosure obligations of the collaborative
process do not guarantee absolute full disclosure in all
cases; however, on the whole, the obligations and
assurances of full disclosure required by the process
create an atmosphere where the parties are attempting to
insure they have provided full disclosure. In the
litigation process, a goal of at least one of the
parties may sometimes be to search for legal and ethical
ways to avoid being required to fully disclose
critically relevant information.
10. The Collaborative Process Often
Leads to a Better Quality Deal for the Parties.
The collaborative law process expressly focuses on
interest based negotiations. A significant part of the
collaborative process involves probing the parties to
understand their goals, interests and concerns.
Discussions and negotiations are centered on trying to
achieve settlement options which best serve the shared
and competing goals, interest and concerns of the
parties.
An example often used in the collaborative process to
illustrate this point is the story of two ladies
fighting over a dozen oranges in the town market. A
wise old Judge appears and quickly solves the dispute by
awarding each lady six oranges. Both ladies then become
furious with the wise old Judge. Before dividing the
oranges the judge did not take the time to ask the
ladies why they were fighting over the oranges. It
turns out that one of the ladies wanted the meat of the
oranges to make juice and one lady wanted the rinds of
the oranges to make a pie. Had the judge simply asked
each of the ladies what their goals, interest and
concerns were he would have quickly been able to arrive
at a solution where both ladies were totally satisfied.
While interest based negotiations are often a part of
negotiations in the litigation process, the
collaborative law process embraces this concept as a
core concept of the entire process. Many times by
focusing on the differing interests and concerns of the
parties, a "win/win" resolution can be more easily
discovered than by focusing on what a court or jury will
or will not do with a certain set of facts.
11. Legal Fees Are More Efficiently
Used.
In the collaborative law process, the parties do not pay
their lawyers to comply with all the procedural rules
that govern discovery and the rules of evidence required
by the litigation process. The parties do not spend
money for their lawyers to interview witnesses, prepare
direct and cross examinations or practice opening and
closing statements that never get used.
The money that the parties do spend on their attorneys
is all oriented towards actions related to trying to
settle the case. The parties do not pay for trial
preparation expenses that may never be used.
Overall, experience has shown that the legal fees
associated with collaborative cases are substantially
less than the legal fees associated with a fully
litigated case in the litigation process.
12. The Collaborative Law Process is
More Private than the Litigation Process.
Because there are no court hearings, depositions or
document requests to third parties in the collaborative
law process, there is a better chance the parties'
dispute will stay private and confidential. Privacy is
a huge concern for many individuals and the
confidentiality provisions of the collaborative law
participation agreement and the private nature of the
process itself help the parties better achieve the
privacy they often desire.
13. The Collaborative Process Has a
Better Schedule.
Meetings in the collaborative process are all scheduled
by agreement. There will never be a situation where a
judge is ordering a mediation or hearing during a
party's family vacation or during a party's important
business meeting. The scheduling of meetings in the
collaborative process are agreed upon by all parties and
their attorneys.
14. The Parties and Their Emotions are
More Removed from the Courthouse.
Because the parties cannot rush to the courthouse when
they run into impasses this allows for a cooling off
period to allow parties to more fully consider their
options instead of making an emotional decision that
puts them in front of a judge three days later.
Sometimes family law disputes are set on an irreversible
course of destructive litigation because of a temporary
hearing that started over a small fire that quickly
dissolves into a raging forest fire.
15. The Collaborative Law Process
Creates a Better Atmosphere for Creative Brainstorming.
In general, the negotiating atmosphere created in the
collaborative process is by design less volatile and
less threatening. A goal of the collaborative process
is to create a safe process to express and resolve
conflict. In general, there is a greater possibility of
creative thinking and creative problem solving when
people are working in a calmer, more emotionally stable
atmosphere than an unstable one.
Negotiations in the litigation process can be more fear
based. In the litigation process the threat of a
courthouse showdown or a confrontational deposition is
more imminent. There is virtually nothing about the
litigation process that causes people to feel more
relaxed, less vulnerable or safer. While fear based
negotiations can certainly inspire settlement to avoid
confrontation, possible creative solutions may be
overlooked in a more heated emotional environment.
When attempting to settle in the litigation process, the
language the lawyers and parties use is often very
different than in the collaborative process. In the
litigation process, negotiations are more likely to be
conducted with an "us vs. them" or "gotcha" attitude and
using battlefield metaphors and language. This
adversarial attitude and mentality is often polarizing
and can make achieving settlement more difficult. While
the parties in the collaborative process are adversaries
and have competing interest, the process itself attempts
to encourage cooperation and collaboration to discuss
and solve problems. The litigation process by its
nature is adversarial and negotiations in that process
are more likely to become polarizing.
16. In the Collaborative Law Process
the Parties are in Control of the Dispute, Not the
Lawyers, and There is Less Risk of a Fight Between the
Lawyers Overshadowing the Fight Between the Parties.
In the collaborative law process, the parties by design
are put in ultimate control of the process. In the
litigation process, the court's imposition of litigation
oriented deadlines may by necessity create situations
where the parties lose control of the litigation process
and lawyers are forced to make decisions which may limit
or diminish the control of the parties over their
dispute.
Additionally in the litigation process, one lawyer is
more likely to get in a disagreement with the other
lawyer that gets dealt with by bombarding that lawyer
and his or her client with discovery requests, temporary
hearings or procedural motions. In such a situation,
the parties may feel trapped in a dispute that is more
between their battling lawyers than it is between the
parties themselves.
In the litigation process, the parties often either
agree or are ordered by the court to attend mediation.
Mediation is another popular settlement alternative to
resolving a dispute by going to court. In most
mediations, the main negotiator is the mediator instead
of one of the attorneys or the clients. In the
mediation process, the people with the best command of
the facts and their interests, the parties and their
lawyers, are usually not allowed to negotiate directly
with the other party. As in the children's game of
telephone, much is lost in transaction.
In the collaborative process, discussions are held in
joint meetings with direct communication between all
parties and their lawyers and the chances for
misunderstanding and miscommunication are greatly
reduced. Further the parties are allowed to negotiate
directly with the decision makers instead of through an
intermediary with limited understanding of the dispute.
Mediations are often a "one-time" marathon settlement
conference. Mediation is typically an event rather than
a process. In the collaborative process, the discussion
and negotiation of a settlement is typically done over
the course of several meetings instead of all at once.
This allows parties and their attorneys to think things
through and give careful consideration to options
instead of making important, binding decisions when the
parties may be tired and under pressure.
Lastly, in the litigation process, mediations are often
held when trial is imminent. This means the parties may
have already incurred substantial legal fees and trial
preparation costs and these fees and costs can make
resolving the already difficult conflict even more
challenging. Trial preparation costs are not part of
the collaborative process.
If you would like to know more about the collaborative
process, a good starting place is hte Collaborative Law
Institute of Texas. The web site for the Collaborative
Law Institute of Texas is
www.collablawtexas.org. The Collaborative Law
Institute of Texas is a statewide organization
attempting to inform th epublic, attorneys, mental
health professionals and financial professionals about
the collaborative law process and to identify
collaborative law attorneys and other professionals to
the public. The Collaborative Law Institute's web site
contains contact and background information for
collaborative lawyers, mental health professionals, and
financial professionals. The web site also includes
numerous articles and links to other collaborative law
web sites.
The collaborative law process is not appropriate for all
cases and certainly is not a perfect or foolproof
process. However, for families having legal disputes
who have both real conflict and a desire to settle their
differences without going to court, the collaborative
process will offer hope for many. In many cases, the
collaborative process will be better able than the
litigation process to increase the chances that the
dispute will be resolved in an acceptable way without
the family having to endure the difficulties encountered
when family members litigate against each other in open
court.
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