Houston Divorce Lawyer & Attorney : Cavers Law Firm : Texas Family Mediation & Adoption Lawyer

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 the 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.
A. WHAT IS 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.
B. HOW DOES THE COLLABORATIVE PROCESS WORK?
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
attorneys more efficiently resolve the dispute.
C. THE STRUCTURE - THE WRITTEN COLLABORATIVE
LAW PARTICIPATION AGREEMENT
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.
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8. Agreements to use only mutually selected
neutral experts. These experts cannot testify in
future litigation between the parties unless the
parties so agree.
D. THE PROCESS - A PROBLEM SOLVING “ROAD MAP”
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 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.
E. MORE THAN JUST LAWYERS - A TEAM APPROACH TO
SOLVING FAMILY DISPUTES
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 this 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 the collaborative
process and help both the parties and their lawyers
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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, nontestifying 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 the situation with the children.
F. ADVANTAGES OF SETTLING FAMILY DISPUTES IN THE
COLLABORATIVE PROCESS VERSUS THE LITIGATION
MODEL
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 a 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
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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 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 the 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
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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 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 in
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 in 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 in 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
going 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 Help 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…” Tex. Fam. 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 that 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.
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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, interests 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, interests 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
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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 interests, 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 the 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.
G. DIFFERENCES BETWEEN MEDIATION AND THE
COLLABORATIVE LAW PROCESS
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 translation.
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.
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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.
H. MORE INFORMATION ABOUT THE COLLABORATIVE
PROCESS
If you would like to know more about the
collaborative process, a good starting place is the
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 the public, 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.
I. CONCLUSION
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.