How would you like to resolve your family law dispute in a manner focused on the needs of the clients and not on pointing the finger and tearing down each other? How would you like to take control over the outcome of your case, rather than surrender control to lawyers, judges, or strangers on a jury? If this sounds appealing to you, then consider resolving your case collaboratively. Collaborative law came to Texas in 1999, and it is increasingly becoming the process of choice for clients with family law disputes.
Collaborative law is client-centered. The entire focus is on the goals and needs of the client. The process is designed to provide the clients with a forum in which to find a best possible outcome for all parties and their children. A traditional litigation model is not client-centered. It is driven by the attorney and judge, as well as the rules of procedure and evidence. The primary focus is on getting ready for trial (even through 95% of cases settle), and ending the lawsuit, but not on the quality of the end product.
The process also provides a safe and confidential forum for the resolution of disputes, whereas the litigation model is public and the parties are subjected to cross-examination, depositions, and court-imposed rulings. Parties who agree to handle their dispute collaboratively agree that they will not go to court to resolve disputes. They also agree to schedule four-way settlement conferences that involve the collaborative lawyers and each party. The meetings are private and organized — agendas are mutually prepared to list topics to be discussed and resolved. The rules of evidence do not apply; therefore, the parties are free to discuss whatever is important to them, regardless of whether a judge would consider it. Likewise, the parties have the ability to create tailor-made settlements for their particular family. Many times, the parties reach agreements that a court would never consider or have the authority to impose. And most importantly, nothing happens that the client does not agree to.
A frequent concern raised by clients is that their spouse may not be forth coming in providing information. Parties who contract to handle their case collaboratively also commit to full disclosure of information. Your collaborative lawyer is still there to make sure that all-important information is disclosed. Additionally, many clients have a misconception that a litigation model will insure that they receive full disclosure. In fact, a litigation model is an ideal process for parties who want to play “hide the ball”, because there are many ways to abuse the court rules or use loopholes to avoid disclosure.
In order to effectively work, collaborative law requires each party and attorney to agree that if the parties cannot settle their dispute collaboratively, then the collaborative attorneys must withdraw and the parties must hire litigation counsel. This may sound scary to clients at first; however, this is what makes this innovative process work. Everyone has a stake in continuing to “think outside the box” in order to problem-solve, rather than run to the courthouse. Otherwise, the collaborative lawyers are out of a job. Your collaborative lawyer is still present to assist you in gathering and assessing information, analyzing your options, and negotiating a solution. Additionally, experts are still used as necessary (e.g., psychologists, financial advisors, and appraisers). Collaborative lawyers have additional training in communication and negotiation skills to assist you, and they are committed to problem-solving for their clients.
The skills that parties learn throughout the collaborative process allow them to end their divorce or other family law dispute in a dignified manner, and assist parents in working together beyond the end of their lawsuit.
Jody L. Johnson is a partner in the firm of Allison & Johnson in Plano, Texas.