Collaborative Family Law–A Journey Far Beyond Victory
Content courtesy of Mediate.com, edited by Attorneys and Mediators Papa and Roberts
The use of the collaborative law process in family law matters is new to the state of Texas. The collaborative law process was first introduced in Dallas, Texas, in February, 2000 at a seminar hosted by John McShane and Larry Hance. The seminar speakers were Stuart Webb of Minnesota, a family lawyer who created the collaborative law method in 1990, and Pauline H. Tesler of California, who refined and developed the model over the past ten years.
The state of Texas embraced the collaborative law idea and became the first state to encourage its use by adopting the process as a means of conflict resolution for family disputes, including divorce. The Texas Family Code Section 6.603 calls for the use of collaborative law procedures in divorce cases without children. Section 153.0072 of the code is for use in suits affecting the parent-child relationship, whether or not joined with a marriage dissolution action.
The attorneys who have been trained have formed professional associations to sharpen their skills and promote the idea to other attorneys. This paper is written furthering the goal of increasing the number of legal practitioners willing to engage in the practice of law collaboratively so that the pool of attorneys available is adequate to meet the demand.
The collaborative law process in the family law context assumes two clients who want to resolve their family issues themselves with guidance by competent counsel. The clients and their respective attorneys enter into a collaborative law agreement that states that should a judicial decision or coercive enforcement be sought by either side, both attorneys will withdraw and the clients may retain new advocates to proceed to a court hearing. Following the execution of the participation agreement, usually at the first four-way session, the parties and the attorneys embark on an informal discovery process that supports informed interest-based negotiation at a series of four-way sessions until all issues are resolved.
The reasons clients are drawn to the process support its incorporation as one aspect of a family law practitioner's offerings. There are also compelling benefits that enhance the practitioner's quality of life. A summary of how the process is evolving in Texas will answer some of the questions about the practical application of the process. How the method is theoretically supported by Harvard Negotiation Project's work will be explored by showing the way in which the principles of 'Beyond Winning' are used continually in the collaborative law process.
Do you have a question about Collaborative Law related to a divorce or separation? If you are in the Nashville area, submit your inquiry to Family Law Attorney Benjamin PapaCLIENT OBJECTIVES SUMMARIZED
Avoiding of the Battle
Clients with family law issues, particularly divorce, know how catastrophic the aftermath of disputed litigation may be on their inner peace and the harmony in their relationships with family and friends. Everyone has witnessed the horrors of "nasty divorces." Rational individuals when functioning at their best would all agree that it is best to avoid a war in family matters. They know everyone ends up losing, especially the children. We need only to recognize that the fear of spiraling down into the abyss of financial and emotional ruin inhabits any prospective client we meet.
As one client eloquently put it in an initial interview, he defined six objectives in hiring a family lawyer:
- The divorce be as amicable as possible
- The first priority always be the parties' child and his best interest
- The outcome be fair and just to both sides
- The high level of emotions be managed in an appropriate manner
- Both sides be represented by competent advocates
- Speed of resolution be attempted
This client had previously consulted with an attorney who was limited in his/her repertoire to the traditional adversarial approach to divorce. The client had walked from that interview despondent, having only engaged in an analysis of 'how to win.' Many attorneys never take the time to ascertain that what their clients are seeking is a peaceful resolution, not the service the attorney is offering. The attorney is only promising thorough discovery and capable courtroom advocacy. Little mention is made of the fact that about 95% of family law cases settle in the shadow of the courthouse, often after lengthy discovery and adversarial posturing.
'Typical' Client Attributes
The 'typical' client in a collaborative law case is sophisticated, intelligent, and thrifty; the client is reasonably informed and willing to take action to become more informed about the estate and the impact of decisions on the family; the client is basically trustworthy, fair-minded, generous, courteous and respectful of others; the client is willing to be coached about how to participate more effectively in the collaborative process. Clients who were among the first to choose this process in Texas have included doctors, attorneys, business consultants, business owners, religious leaders, teachers, architects and independent investors.
Generally, the client's annual income has been in excess of $50k per year, enabling them to afford the purposeful and deliberate pace to the negotiations needed to understand each side's interests thoroughly. The fees that the parties' estates will collectively be assessed for the resolution of the issues will likely fall in the $5,000 to $30,000 range, depending on the number of issues involved. They will likely meet 2 to 6 times for 2 to 4 hours per session. Usually, they share the dispute resolution costs equally from the community estate, regardless of which attorney performs the bulk of the work. The division of labor is based more on expediency than 'cost-shifting'.
Clients reduce costs by doing much of the informal discovery work on their own. They contact employers and investment advisors directly for information about critical financial facts about their retirement plans, insurance benefits, and investments. They gather data about their assets and debts on their own and are willing to input the information directly onto blank form inventories that are exchanged via email until complete. They talk to their accountants and counselors regarding the most prudent course of action and provide feedback to the group. They develop information requested by neutral appraisers. They work closely with estate attorneys to obtain their wills and trusts ready for execution immediately upon entry of the divorce decree. They prepare budgets and occasionally work with neutral Certified Divorce Planners (CDPs) to manage cash flow and to establish the needs which contractual alimony and child support will cover. They meet jointly with brokers and arrange for the sale of assets. Sometimes they work together to hold an estate sale or advertise personal property for sale in newspapers / Internet. They divide their furniture, furnishings, goods, appliances and personal effects as agreed and provide lists of any property in the possession of the other that they are to be awarded. Those who want to pay others to do what they could do themselves are free to do so with prior discussion regarding the use of community funds to pay for such services.
Some individuals feel that the process of formal discovery has become a mechanism of increasing the attorneys' comfort level and reducing their exposure to malpractice than a means to ascertain undiscovered facts and details. Sophisticated clients often retain joint bookkeeping records, use a shared accountant, and direct deposit their funds into a joint account. They see no reason why an attorney or his/ her assistant should have to personally view all the cancelled checks and statements of accounts. They know all the relevant financial information or can easily exchange statements to satisfy themselves that the sworn inventory and declared values are accurate without being subject the additional investigation and resulting expense.
This the process is certainly costly compared to an uncontested divorce where only one side employs an attorney and the other side waives citation. Conversely, it offers major cost reductions compared to an inefficient negotiation process or to actual litigation. Some clients are distrustful when an attorney tells them they ought to take the matter to court, because they suspect the attorney is influenced by the financial motivation of increased fees from a fully litigated case. Clients are often disappointed, claiming that their cases won't settle or settle late because their attorneys benefit financially by spending more time on the matter. 'Keeping the costs down' is cited as an advantage by clients who have been through the collaborative process. They are overwhelmingly satisfied that the fees are reasonable, considering 'the amount of interaction.' Yet, in general, it seems that the parties who select the collaborative process value the method more than the 'bottom-line' in transaction costs.
A significant advantage recognized by clients is the collaborative law's inherent privacy benefit. The parties meet privately usually alternating between their attorneys' offices. Their discovery is exchanged at the sessions simply upon request. A joint inventory and appraisal are usually prepared by the parties themselves and is generally not filed in the court papers. Questions are answered without the necessity of depositions. There are no public court hearings, other than 'prove-ups'.
Using Neutral Experts
The collaborative approach employs neutral experts. Both parties have an interest in getting a true picture of the estate's value and trust 1 neutral expert to advise them on valuation issues rather than 2 hired to present the information in the light most favorable to their respective clients. It is common for the parties to hire neutral business/ realty appraisers to provide an opinion about fair market value. Such experts are not allowed to testify in court proceedings, under the terms of the participation agreement, unless both sides agree that such testimony is desirable. The parties may have a 5-way session with their accountant to answer tax questions about the various approaches to property division. They may hire a mental health expert (neutral) who will counsel them or facilitate implementation of some plan.
Control is an issue for most people involved in family law matters. Nothing feels more 'out-of-control' than having one's destiny decided by a judge of fact based on information presented ably or not ably by an attorney over whom one has no control. It is a common experience for a witness to feel helpless when important areas of inquiry and explanation opportunities are absent from the testimony because no one inquired. This is magnified when the parties with a stake in the outcome feel frustrated that they never had the chance to tell their story. The collaborative process recognizes that the essential people who need to be persuaded to take a specific course of action are all in the room and prepared to listen to all the options and proposals and the reasons supporting them. Maintaining control over the decisions is viewed as a definite benefit to engaging in the process.
The Benefits of Negotiating Directly
Another factor that enhances the parties' control over the process and result is inherent in the nature of 'in person' negotiations. Some clients and their counsel experience a feeling of loss of control in mediations conducted entirely in the caucus style; one must fully trust the mediator to convey persuasively the rationale for one's proposal. In collaborative law this powerlessness to control the process is alleviated when the parties witness personally that their interests are thoroughly addressed. One client described that he found the process to be "more personal" because one "must address issues directly." A second client stated, "I feel it is beneficial to be face to face with all parties." Clients can see the actual reactions to discussion points and can predict what has a better chance of being accepted. For these clients, reviewing written proposals in one's attorney's office and trying then to craft a written response that will be favorably received by the other side is inefficient. In collaborative law, the parties can move quickly to the 'zone of possible agreement.' Of course, there are times when the parties expect their legal representatives to privately caucus with each other, especially in agenda planning; that way everyone is prepared to address the issues that may arise.
The Benefits of Creative Problem Resolution
Another essential way in which control is maintained is that the agreements are creatively fashioned through mutual problem-solving to address both sides' interests. The parties are not forced into guideline solutions, but merely use the law as a guideline and objective standard to measure what they decide is best for them. The 'one size fits all' mentality is substituted by an awareness that each family is indeed unique. The reconstitution of the family does not cause a forfeiture of their right to decide what is appropriate for them.
Speed of Process
The collaborative process allows the client to manage his/her time. Sessions are only held when it is convenient for all parties. The 'hurry-up-and-wait' rule experienced at the courthouse for which the parties pay for wasted time is removed, since the sessions have a scheduled beginning time and the parties use any time before the actual session commences to discuss the agenda items and strategize with their attorneys. Setting agendas in advance keeps the sessions on task; issues which are not ripe for resolution are held over for consideration at future sessions with no time wasted. Written notes of the critical portions of the sessions help the parties to recall what was discussed about each topic. Commonly, between sessions partial agreements are memorialized in writing or portions of the final documents are drafted detailing the points of agreement. In future sessions, drafting issues can be resolved as part of the ongoing discussions. A closing and signing session gives the parties the opportunity to make final minor adjustments to the documents in preparation for the prove-up which is usually only attended by the Petitioner and his/ her attorney.
The speed at which the case proceeds is driven by the efforts of the parties to gather data, meet with advisors, and reach agreements on key issues in the four-way sessions. Motivated parties with available counsel can see a case from start to finish within 3 months. For some, the efficiency and speed of the process are the most appealing attributes. The avoidance of protracted litigation means the emotional toll is alleviated to a great extent. The clients are generally more productive in their personal lives and can recoup financially quicker from the distraction of a pending family law matter. The longer a case is pending, the more the matter costs in legal fees. Most clients are quite motivated to stop the financial hemorrhaging and contain the costs.
The parties almost always prefer the reasoned-approach to conflict resolution. No one is telling them to accept the deal today or else go to court tomorrow. They are not under the stress that lengthy mediations place on litigants to resolve the matter now and sign a less-than-thorough binding settlement agreement. They always are granted time to deliberate about the choices they are making and gather additional information. This allows them to arrive at a calm sense of acceptance about such decisions. Some individuals experience buyer's remorse if they are pressured to make a decision; but when they are given the opportunity to reflect on the options and get advice, they can live very happily with that same decision. Several settlements made 'on the courthouse steps' are not well thought-out and do not address the contingencies that the teamwork of collaborative law brings to light. A problem-solving mindset seeks resolution to these anticipated difficulties.
The Texas Family Code Sections 6.603 & 153.0072 provide both parties plenty of time free from the stresses that accompany court dockets. The parties need only file a status report 6 months after they signed their participation agreement and a joint motion for continuance one year after the agreement was signed, to be afforded 2 full years of freedom from the court's intervening to set hearing or trial dates, impose discovery deadlines or to dismiss the case for want of prosecution. This has allowed clients to explore reconciliation possibilities without tallying up lawyers' fees to keep the court at bay. It also permits them to take preliminary steps to get their affairs in order, such as selling a residence, arranging a loan, or refinancing, prior to finalizing their property division. Sometimes the parties are simply too busy with other matters to focus on the divorce and strongly prefer to set their own pace. Always the parties are at different stages in the grieving process and the 'leaver' may be willing to allow some time for the 'leavee' to come to some sense of acceptance of the inevitability of the divorce. Adding the pressure of externally imposed deadlines puts undue stress on an already stressed family.
The collaborative process promotes positive communication. Ground rules are followed and parties are afforded the opportunity to 'make their case' without interruption or objection. When emotions are high, a recess can be taken and the parties can settle down before they approach the 'hot button' issue again. Clients truly appreciate the attorneys acting as referees and helping them keep things calm.
The method of conflict resolution is so satisfactory that parties routinely state they will use collaborative law in future disputes (as provided in their final agreements). If the parties and their collaborative attorneys need assistance to resolve certain issues, they may participate in mediation or, if the issue is contained enough, have a limited binding or non-binding arbitration. The only closed door is the one to the courthouse, and that means that there is no 'backward slide' to a third party decision-maker as long as there remains hope that the parties can resolve the matter themselves.
Maintaining Self-Respect and Dignity
Non-monetary attributes play a significant role in the attractiveness of the collaborative law process. As one client claimed, "Given the fact that divorce itself is less than ideal or noble, it was heartening that in the midst of the shock and sadness, that there was at least a way to live up to the ideal in the way we handled the proceedings." When the process is finalized, the parties possess the sense that they have left a relationship with dignity, having done the 'right thing.' They have had the chance to demonstrate their basic goodness by being both civil and respectful. They have proactively reduced the level of conflict, which they know will have long-term benefits for their children, extended families, and mutual friends. They have witnessed the progression of the grief cycle to a place of greater acceptance and know that each is in an emotionally healthier place. Spiritual values that place a premium on inner peace have been promoted by a process which does not escalate tension. They have modeled their values for their families to observe and as a testimony of their goodwill. They have few or no regrets about how they conducted themselves and what they said.
Of course, there are some clients that do not hold such values and for whom the process may be inappropriate. A person who cannot make a decision and would rather a third party decide for him/her would be dissatisfied by a process where nothing transpires except by mutual agreement. No one who feels he /she has been coerced into the process of collaborative law should participate in it. A family violence victim who would likely feel intimidated in face-to-face negotiation should use an alternate dispute resolution method, even if it is caucus-style mediation. Someone who requires a judicial determination of a preliminary question of fact that is pivotal to the negotiations needs to go to the courthouse first. Later that party could sign a collaborative participation agreement and proceed to negotiate the case outside the court setting. One who needs to set a precedent or seeks public vindication may find the privacy of the process unattractive. A person who seeks to take advantage of another or to outspend the other party to the point of capitulation may not feel rewarded in the collaborative law process. Anyone unwilling to compromise will not be able to function in the give and take environment of the 4-way sessions. Collaborative law offers no coercive enforcement or punitive measures to satisfy vengeful parties.
I believe there will always be a place for a practitioner who wants to limit him/ herself to the traditional adversarial practice of law. There are certainly a sufficient number of clients who will voluntarily opt out of a collaborative effort in favor of traditional litigation. The point is that as the consumers of legal services become more knowledgeable, several will choose collaborative law because a friend, a civil attorney, a CPA, a counselor, a minister, or even the Internet will inform them of this choice. Being a full-service practitioner or one who limits his/her practice to collaborative law will make one more marketable. It is one way to stem the tide resulting from the cynicism about attorneys which has driven many to ill-advised representation. The parties who choose collaborative law are not those who represent themselves and, thus, have a 'fool for an attorney', but rather are the well-informed consumers who are actively seeking an alternative to meet their needs /objectives.ATTORNEY OBJECTIVES
Satisfying the Needs of Prospective Clients
The objective of offering a service sought by prospective clients, and thereby expanding the pool of available legal referrals, is just one of the many benefits that family attorneys have found in adopting collaborative law as a critical aspect of their practices. While the process is new and the number of practitioners trained is limited, the opportunities to market the concept appear infinite. Mental health professionals, business and tax advisors, spiritual leaders and clients themselves are actively encouraging others to investigate collaborative law as a means of resolving conflict. Public service radio announcements and other media have begun to raise the public awareness. If every client was informed about the process as an alternative to litigation, just as they must be advised about other ADR processes, I am convinced several would select it at the point of initial consultation.
Satisfaction within one's Practice
Several attorneys drawn to this process feel it aligns with their value system and helps them to once again feel good about what they are trying to accomplish with their clients. Few attorneys admit receiving pleasure from being 'home-wreckers' who destroy parties financially and emotionally, then abandon them on the courthouse steps. The clients can then live the rest of their lives in bitterness with great distaste for the legal profession and attorneys, in general. As fellow family attorneys, no matter what others say about us, generally believe that we are trying to help families adjust to changes ensuing from a divorce and restructuring families. We value children's best interests and often view ourselves as champions fighting for that exact result. Over time, family attorneys have come to believe that the adversarial system itself is harmful and inflicts a kind of abuse upon families. We often seek out ways to minimize the damage and embrace less harmful methods.
We all look for ways to improve our own practice considering the impacts to our clients. Self-determination and the right of the parties to frame their own solutions appeared to be the answer. When we were introduced to collaborative law, it certainly seemed worth exploring as a possible alternative. We are pioneers who prefer to be on the cutting edge of social evolution. We think that we have a duty to our profession to help it grow to be the best it can be to meet the changing demands of a changing world.
Positive Professional Attorney Relationships
The camaraderie attorneys who embrace collaborative law is energizing. Attorneys need like-minded attorneys to collaborate. This means offering your clients a referral list of attorneys that their spouses could retain, trained and willing to perform such work. It is preferable for the other party's attorney to have common methodologies and agree on how a collaborative case is handled. Yet, if this is not the case, one attorney can educate the other side's attorney about the process, as they go through it. Knowing the way the other attorney conducts business can be a benefit to one's client, just as knowing a mediator's style enhances the quality of the mediation experience. What a benefit to be able to trust this attorney to point out errors and miscalculations, to take reasonable positions on issues and to manage conflict appropriately.PRACTICE CONSIDERATIONS-Is Collaborative Law for You?
Knowing how a collaborative case is conducted is beneficial in deciding whether to venture into the waters of practicing it. A summary of some of the tools and techniques that Texas collaborative attorneys are adopting to facilitate the process is part of the purpose of this article. This is not the only way to conduct the process; it may not even be the best way. The attraction of the process is that it is adaptable within certain basic parameters to the needs of the parties and the jurisdiction in which they reside.
A typical collaborative law case involves one party learning about the process or seeking the counsel of a family attorney.
- An attorney is contacted to schedule a consultation.
- The prospective client may receive a packet, which may include the attorney's resume´, a disclosure statement about the advantages and disadvantages of the process, a collaborative law representation agreement addendum which would be incorporated into an employment agreement, a sample participation agreement, articles about the process, a list of attorneys to whom the client might refer the other side and, depending on the attorney, information about the litigation services offered by the law firm.
- The client arrives at the consultation and confirms that the provided material has been reviewed or is first given an opportunity to study the information.
- The consultation then focuses on the objectives of the client and his/her interests The attorney's role is an educator about the law and explains that the law is just a template or standard against which outcomes may be guided or compared or, when necessary, decided by a third party. Further, the parties are free to form their own arrangement within certain limitations.
- At this point, the client may opt to pursue the collaborative law approach.
- The client decides whether to retain the lawyer and signs an employment agreement and the representation addendum.
Unless there is a compelling reason to have a petition on file, the decision as to who will file is usually deferred to the 1st 4-way session. Once the alternate side retains collaborative counsel, the attorneys contact each other and work out the preliminary session's agenda. Generally, the agenda of the first 4-way meeting includes reviewing the collaborative law participation agreement, changing (as needed), and executing the agreement. Ground rules are defined for the parties. The parties determine who will file and when the petition and will be filed.
The parties decide whether agreed temporary orders are desired. If so, they are prepared then or at / before the following session. Advice and tips on preparing inventories/ appraisements and forms are handed out. A limited discussion is held about what information must be obtained regarding assets / liabilities to complete the inventory. The parties sign email forms to authorize communication between attorneys and from client to attorney. The parties consider which neutrals to use from child specialists to certified divorce planners (CDPS), etc. Any immediate issues may be discussed, such as imminent moves or requirements for sharing of resources on an temporary basis. The parties also discuss the source of funds for funding neutrals and attorneys in a fair manner. A timeline is developed and 2-3 future sessions are scheduled.
Following each session, the attorneys document any substantial using minutes of the session. Rule 11 agreements and temporary orders are drafted to cover any matters in which the parties would want to be able to have the court enforce, (in the event the process terminated).
Next, all work on their 'to do' lists. The clients gather information, while the attorneys prepare releases of information. At this stage, steps are taken to implement the interim understandings about living arrangements and expense sharing.
The following session might have only temporary issues on the agenda, such as support and children access, and the exclusive use and possession of certain property. In this meeting, the parties may be ready to address a parenting plan and parenting schedule. Depending on the case, property may be the focus of the session. The parties may want to do a symbolic 'walk around the estate verbally reviewing the items on the inventory. Consultants are selected at the point in the process.
Future sessions focus on resolving issues remaining unresolved. Drafts of the portion of the final documents detailing resolved issues are reviewed to see if they conform to everyone's understanding. At this stage, the parties often decide to execute binding Collaborative Law Partial Settlement Agreements to memorialize what they have already decided, such as the parenting schedules or division of assets. The parties may decide on a process to utilize to resolve difficult issues. They may seek a consultant's opinion at this time. They may call in expert neutrals to advise them in a 5-way session. They may decide to exchange proposals (not offers) as a means of defining areas of agreement and differences. They may respond to prior proposals. As you can see, each session narrows the issues.
The closing session(s) focuses on the documents and refines the language to cover any issues raised in the process of documenting the deal. The last session is a signing session, like a real estate closing, at which everyone affirms his/her voluntary commitment to the agreements reached. Next one attorney arranges to meet his/her client at the court to prove-up the agreement. Usually, the participation agreement has been filed in the cause at the outset when the court was notified that the case was to be handled in a collaborative manner. At the prove-up the Court is notified of the process through dialog with counsel or through the questions asked of the party. A questionnaire may be presented to the client for evaluation of both the attorneys and the process. The documents may call for a continued sharing of legal expenses to finalize the case within 30 days and then any unused portion of either attorney's escrowed retainers will be split between the parties as an asset distribution, given the source is community funds.
When all is completed, the attorneys are often very pleased with the thoroughness of client issue resolution. The attorneys develop into better attorneys in the process, in my opinion. Much is demanded of them to document agreements in a manner that both side's interests are protected. What one suggests as a reasonable solution in one case is likely to raise the bar (in a sense) so that the exact request will be made by the other side the following time. Clients become more protected as the process evolves and as attorneys are educated about creative options which courts would simply never consider.