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FREQUENTLY ASKED QUESTIONS
Answers to Frequently-Asked Questions about Collaborative Family Law
What is Collaborative Family Law? Collaborative Family Law is a method of resolving family law disputes in which both parties retain a collaborative attorney, whose job is to assist them in reaching a mutually-agreeable resolution. Neutral mental health professionals and financial professionals are also members of the team assembled to assist clients as they work toward making fully-informed decisions about their future.
How does Collaborative Family Law differ from other methods of dispute resolution? In the traditional litigation approach, both parties hire attorneys whose focus is to prepare a picture of reality that will result cause a judge to give the client what he wants. Often, this method includes denigrating the other party and his or her perception of reality. Trial is often compared to a battle, in which the best side "wins." In most cases, however, there are no winners in litigation. Everyone ends up feeling like they are much worse off than they were when they began the process. If there are children of the marriage, they often suffer the most, regardless of their ages. In mediation, a neutral professional assists the parties in settling the dispute. Sometimes parties attend mediation without lawyers, in which case they have no one to advise them of their rights or suggest possible solutions. In cases where there are attorneys, mediation often does not occur until after there have already been hearings, depositions, formal discovery, and other time-consuming and expensive events. The parties can feel pressured to settle in someone else's time frame, and there is always the possibility that the parties will end up in court if they don't reach an agreement by an artificial deadline. Collaborative Family Law combines the positive qualities of litigation and mediation. Just as in litigation, each party has an independent attorney who will give him or her quality legal advice and will advocate for his or her interests. Drawing from mediation, the parties and attorneys commit to settle without going to court. The difference is that there is not one day or a few hours set aside for the purpose of settlement. Settlement is the goal from the very first Collaborative Family Law meeting until the very last meeting. This allows the people who really count - the parties and those important to them - to get all the information they need to be creative in coming up with solutions that make the most sense for them in their specific circumstances. Most of the work in Collaborative Family Law cases is done in joint meetings among the parties, the attorneys, and whatever other members of the team are needed for the topics that are to be addressed. Often, the clients will meet with the team members together or separately to gather information and prepare for joint meetings. Team members take care to assure that the needed services are provided to the clients by the most qualified, least expensive team member, in order to preserve the clients' resources. How is information gathered in Collaborative Family Law? The parties do not engage in expensive legal procedures (called, "discovery") to obtain information. Instead, the parties and attorneys agree from the beginning that they will produce all necessary information and documents voluntarily and in a timely fashion. Hiding documents or unnecessarily delays are not permitted. If a party is not acting in good faith, it is the duty of his or her attorney and the rest of the Collaborative Family Law team to work with the client to change his or her behavior and to withdraw from representing that party if the behavior continues. How do the parties, attorneys and other professionals work together? The attorneys work with each other, with their clients, and with the financial and mental health professionals to plan each meeting. After initial meetings with their own attorneys, most cases start with a joint meeting. The parties, attorneys and allied professionals meet together to discuss the issues, make any necessary interim arrangements regarding children or finances, and to plan for information gathering. The group continues with joint meetings in various combinations of participants to exchange and clarify information, and to brainstorm possible options for resolution. The team's focus is to educate everyone about the underlying information, each party's interests, and possible solutions. Out of this process, the group creates a settlement which meets the approval of both parties. Does it work to have everyone together in the same room in the middle of a divorce? The job of the professionals is to set the tone for positive communication. Spouses in a divorce are often feeling vulnerable and emotional and can be unaware of how their pattern of communication can cause problems. The attorneys and mental health professionals help each client to present his or her interests and needs in a positive manner that will be heard by the other spouse. Meeting together can help everyone to be "on the same page," which ultimately facilitates an agreement. The joint meetings can also serve as a model for the parties to be able to work together after their divorce. The focus of the meetings is on finding a solution, not attacking each other. Must an agreement be reached in Collaborative Family Law? No. Both parties must agree to the settlement. Neither party is forced to accept a solution that does not meet his or her interests and needs. Both parties and the team members understand that the goal is to fashion a result that comes as close as possible to satisfying everyone's interests, while recognizing that they won't receive everything on their wish list. If the parties reach an agreement through Collaborative Family Law, what happens next? The attorneys will draft the necessary legal documents and pleadings to memorialize the parties' agreement. This paperwork is then submitted to the court for approval. Only a brief court appearance by one party is required. What happens if a settlement cannot be reached? If they cannot reach an agreement, the parties can explore other options for settlement such as mediation, arbitration, neutral case evaluation. If court hearings are required, the Collaborative attorneys withdraw and each party retains a new attorney for trial. The Collaborative attorney will transfer the information gathered and will assist the trial attorney in the transition. Why is it necessary for the Collaborative attorney to withdraw if an agreement is not reached? Traditionally, attorneys are trained to approach cases with the underlying understanding that a court will make the ultimate decision. Cases are analyzed with this foundation and are settled with the backdrop being, "What will happen if we go to court?" Court can often become a weapon or threat that derails negotiations rather than moves the parties to settlement. Since settlement has not been the focus from the very beginning, cases often do not settle until the parties are at the courthouse steps, after incurring substantial attorney's fees and depleting their emotional resources. The agreement by both the parties and attorneys that the collaborative attorney will not go to court focuses everyone on creative means of settling the case in a way that is acceptable to both parties. The tendency to "drift" to court as the default decision-making method is reduced. In addition, the open exchange of information that happens as part of the Collaborative process gives the Collaborative attorneys insights and information that might not be available in litigation. Requiring both parties to get new trial counsel allows everyone to fully and freely participate in the Collaborative process so that the chances of reaching an agreement are optimized. One of the main benefits to clients of the Collaborative process is that it provides safety for clients at a time when they are feeling vulnerable. Meetings are set up so that there are no surprises; clients agree that they will talk about their case only in situations that are acceptable to both of them; and relationships develop among clients and team members. Knowing that someone in the group might some day be cross-examining another group member undermines that feeling of safety and the process as a whole. The shift to litigation attorneys allows the parties to adjust to a litigation mind set with new faces, procedures and goals. Who should consider Collaborative Family Law? Everyone should consider Collaborative Family Law, and determine whether it will work in their situation. Collaborative Family Law works best for parties who want to:
What do I do if I want to use Collaborative Family Law? If you are in Austin, Texas, one of our members can help you. Please contact us at info@BetterDivorce.net. Otherwise, if you are in Texas but not in Austin, you can find a Collaborative Family Law attorney in your area by going to the Collaborative Law Institute of Texas' website at www.collablawtexas.org. If you are not in Texas, you can find a Collaborative Family Law professional on the International Academy of Collaborative Professionals' website at www.collaborativepractice.com. Your lawyer and the rest of the Collaborative Family Law team should be people you can trust to provide you with quality advice and should have the skills needed to help you work towards a settlement. You can discuss with your attorney or mental health professional the ways of approaching your spouse about Collaborative Family Law. These can include your discussing the idea with your spouse, your attorney sending information about Collaborative Family Law to your spouse or to a trusted friend, clergy member or counselor, or your attorney initiating discussions about Collaborative Family Law with your spouse's attorney.
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