Q. Why should I consider retaining a Collaborative Lawyer?
A. There are numerous possible reasons, especially in divorce and child-custody proceedings, including:
- The Collaborative Law process is often less costly and/or less time-consuming than litigation.
- As a client, you're a vital part of the settlement team.
- Each party is supported by her/his attorney, as in traditional litigation. But in the Collaborative process, the clients work cooperatively with each other, their lawyers and other professional advisers to resolve all issues.
- The Collaborative way produces substantially less fear and anxiety than courtroom proceedings or the threat of such litigation.
- Everyone focuses on settlement.
- Participants create a climate that facilitates "win-win" settlements.
- Mutual decisions can be finalized quickly after the parties reach agreements. There's no bogging down for months awaiting a court date.
- You and the other party control the proceedings. Your destiny is in your hands, rather than those of a third party, a judge and/or jury.
Q. Is Collaborative Law the best choice for me?
A. Quite possibly. It's not for everyone, whether client or lawyer, but it's well worth considering if any of the following conditions apply to you:
- You want a civilized/respectful resolution of the issues, whatever they are.
- You want to protect your children from the harm that often festers with litigated divorce and other dispute-resolution between parents.
- You value privacy in personal affairs and don't want details of your family breakup, assets and/or restructuring in public court records.
- With children involved, you and your partner want to be co-parenting after the divorce. You want the best co-parenting relationship possible.
- You want to keep open the possibility of friendship with your ex-partner down the road.
- You value autonomous decision making and don't want a judge and/or jury deciding how to restructure your financial and/or child-rearing arrangements.
- You recognize the restricted range of outcomes typically available in the public court system and want more creative, individualized choices available for resolving your and your partner's issues.
- You understand that conflict resolution with integrity involves achieving not only your own goals but also finding a way to achieve the reasonable goals of the other partner and the family.
Q. What is Collaborative Law?
A. Collaborative Law is the name given to a special attitude and strategy toward resolving legal disputes. It also applies to the policies and practices that put that attitude into action. You won't find Collaborative Law in the statutes or administrative regulations, but you will find it in the professionalism and integrity of those who practice it.
Q. What is the Collaborative Law attitude?
A. It's a desire for solving the problem, not fighting the fight. The Collaborative way is to trouble-shoot and problem-solve rather than to litigate and win. When you see the civil justice system as the means to resolve a dispute, you've got the Collaborative Law attitude.
Q. What areas of jurisprudence are prime for Collaborative Law?
A. Although many areas of the law are good candidates for Collaborative Law, it is most commonly used, at this time, in Family Law cases - especially divorce.
Q. How does Collaborative Law work?
A. Though every situation differs, the emphasis is on finding a way for the attorneys to work with all parties to achieve a satisfactory settlement in an efficient, cooperative manner. Often this means participating in settlement conferences: The parties meet together with their Collaborative attorneys, a neutral communications/counseling specialist and a neutral financial adviser to fashion a settlement. Collaborative lawyers are committed to achieving optimum settlements for all parties. They exert as much effort toward settlement as is traditionally spent in preparing a case and litigating it at trial.
Q. What are the differences between Collaborative Law and mediation?
A1. In mediation, one court-chosen "neutral" authority helps the disputing parties try to settle their case. The mediator cannot give legal advice and cannot help either side advocate its position. If either party becomes unreasonable, stubborn or emotionally distraught, or lacks negotiating skill, the mediation process can become unbalanced. If the mediator tries to deal with the problems, he/she is often seen by one side or the other as biased, whether true or not. If the mediator fails to deal with the problems, the mediation can break down or the agreement that results can be unfair.
A2. In Collaborative Law, the methods are designed to prevent problems and to deal more effectively with those problems that arise - all the while maintaining an absolute commitment to a mutually beneficial settlement. Each side has quality legal advice and advocacy built in at all times.
A3. Even if either party lacks negotiating skills or financial savvy, or is angry or upset, the playing field is leveled by the presence of skilled advocates and advisers. The attorneys are trained to work with their own clients, even when unreasonable, to ensure the process stays positive and productive.
Q. What information and documents are available during Collaborative Law negotiations?
A. Both sides sign a binding agreement to disclose all documents and information that relate to the issues, early and fully and voluntarily. "Hide the ball" and stonewalling are not permitted.
Q. How do I know if my spouse/partner is not being fully honest?
A1. Collaborative Law does not guarantee you that every asset or every bit of income will be disclosed, any more than conventional litigation can guarantee you that condition.
A2. But Collaborative Law offers some unique safeguards, such as:
- The Collaborative agreement requires a lawyer to withdraw if his/her client is being less than fully honest or failing to participate in good faith.
- If documents are altered or withheld, or if a client is deliberately stalling for economic or other gain, the respective attorney must withdraw from representing the client. The same holds true if a client fails to keep agreements made during the course of negotiations.
- Each attorney makes these commitments in advance.
Q. How can I be sure that all information is disclosed and accurate?
A1. As in litigated cases, there's no guarantee.
A2. But again, there are effective protections, including:
- The four-way Collaborative agreement signed by the parties at the outset is a commitment to honesty. No such agreement is signed in a traditional, litigated family law case.
- The Collaborative pledge also creates the basis for enforcement action or damages if dishonesty is uncovered.
- In many Collaborative divorce cases, a joint inventory statement with appraisals is sworn into legal status and signed by the parties certifying the extent and value of the properties listed.
- The atmosphere of a Collaborative case is more conducive to honesty because of the civility and reduced animosity that are generally developed and nurtured by the process itself.
- The parties may not be as tempted to cheat or shade the truth when they can share control of the process. If dishonesty occurs and is detected after an agreement is reached, the victim would have the same legal remedies available to a victim of dishonesty in a litigated case.
Q. What happens if a settlement can't be reached?
A. If the Collaborative Law way can't do it, attorneys withdraw from the case, and the parties are free to retain trial attorneys to pursue their matter in court. With that prospect in mind, Collaborative attorneys deliver the best representation for each phase of the proceedings outside the courthouse.
Q. Why do the attorneys have to withdraw if the process fails?
A. It's a fundamental element of Collaborative Law. That requirement ensures that both parties and their attorneys will work in good faith to settle the case. The cost and inconvenience of hiring new attorneys give a huge incentive for the parties to stay with the process and reach an agreement.
Q. What Family Law disputes can be resolved with Collaborative Law?
A. Collaborative Law can be used for any dispute. It has been used most often in the Family Law arena to resolve all or portions of the following disputes:
- Divorce, legal separation, annulment
- Child custody/parenting plans
- Spousal maintenance/alimony
- Child support, daycare costs and college tuition
- Valuing assets
- Division of property
- Division of debt
- Breakup of same-sex partnerships
Q. Will it save time or money?
A1. Because Collaborative cases are handled on an hourly basis, there can be no guarantee of savings. But there's great potential for money and time savings if the parties work hard and responsibly. As with any Family Law matter, time involved - and therefore, the cost - depends on the parties' actions and cooperation, as well as the complexity of the issues. Collaborative parties have more control over the time factor than parties in a litigated case and can avoid the time-consuming court appearances and paperwork piles that characterize most litigated cases.
A2. If a Collaborative case reaches an impasse, there will be considerable additional expense because both parties will have to hire new attorneys. Awareness of this possibility is a prime motivation for the parties to reach a settlement.
Q. How much does it cost?
A. Uncertain. Cost depends on many factors, including complexity of the issues and both the capabilities and interest of the parties in reaching agreements. Likewise for traditional litigated Family Law cases, there's typically no way to predict cost.
Q. How long does it take to finish a Collaborative divorce?
A. That's mostly up to the parties after the mandatory 60-day waiting period for any Texas divorce. An agreement can be approved by the court at any time thereafter. In other Family Law cases, there is no time restriction. In all cases, the time required depends on how well the parties and attorneys negotiate.
Q. How do I begin the process?
A. It takes two to tango, as they say. Thus, it takes two willing participants to use the Collaborative Law process or to use it effectively. Since the practice of Collaborative Law is relatively new, your spouse or partner may be reluctant to agree on using it - and perhaps rightfully so. Each party should be fully informed about the process and its benefits - BEFORE initiating it. Here are the logical steps to take:
- Schedule a meeting with your spouse or partner to discuss Collaborative Family Law and share the information from this Web site.
- Obtain an information packet from one of the listed Collaborative attorneys at no charge, to present to your spouse or partner.
- Review and choose from the list of dedicated Collaborative Law attorneys practicing law in your state.
- Meet with your attorney to discuss your case and the details of the process.
- Most Collaborative Law divorces begin with a meeting between counsel and parties to sign a joint Collaborative Law agreement.
Postscript: If you have a family dispute calling for a legal resolution, you should examine the Collaborative way first.