AN INTRODUCTION to COLLABORATIVE LAW Collaborative Law Section Program

AN INTRODUCTION TO COLLABORATIVE LAW Collaborative Law Section Program

Presented by:

Larry Hance Hance & Wickham, P.C. Two Lincoln Centre, Suite 626 5420 LBJ Freeway Dallas, Texas 75240 (469) 374-9600

Written by:

Harry L. Tindall Angela Pence England Tindall & England, P.C. 1300 Post Oak Blvd., Suite 1550 Houston, Texas 77056-3081 (713) 622-8733 www.tindallengland.com

Friday, June 11, 2010 9:00 a.m. – 10:00 a.m.

LARRY HANCE

Hance & Wickham, P.C. Two Lincoln Centre, Suite 626 5420 LBJ Freeway Dallas, Texas 75240

ROCKWALL OFFICE: 701 Justin Road Rockwall, Texas 75087

Phone: (469) 374-9600 [email protected]

Larry Hance is Managing Partner of the law firm of Hance & Wickham, where he practices exclusively family law, including litigation, mediation and Collaborative Law. He received his Juris Doctorate from the S.M.U. School of Law and became licensed by the State Bar of Texas in 1980. He has practiced law in the Dallas area since that time.

Mr. Hance became Board Certified in Family Law by the Texas Board of Legal Specialization in 1985. From 1988 through 1990, he sat as the Associate Judge of the 301st Family District Court in Dallas County. He has completed the statutory training and has acted as a mediator in family law matters since 1990. He has completed advanced mediation training with the American Academy of Matrimonial Lawyers and the Harvard Law School Negotiation Project. He is a co-founder, and Past-President, of the Collaborative Law Institute of Texas.

Mr. Hance is a Fellow of the American Academy of Matrimonial Lawyers. He is a member of the American Bar Association Family Law Section, where he has worked on various committees. He is a member of the State Bar Family Law Section. He was a member of the State Bar Grievance Committee from 1989 through 1996, where he served as panel chairman. He was admitted to the College of the State Bar of Texas in 1988, and continues to be a member. He was on the Board of Directors of the Dallas Bar Association, Family Law Section from 1988 through 1996, and was the Chairman during 1995. He was a recipient of the Dallas Bar Association Private Bar Involvement Award in 1991 . He is a Fellow of both the Dallas Bar Foundation and the Texas Bar Foundation. He is also a member of the American Inns of Court. He was selected as one of Dallas' top 11 family lawyers by 0 Magazine in 2003 and a Texas Monthly Super Lawyer in 2003, 2004, 2005, 2006, 2007, 2008 & 2009. In 2008, 2009 and 2010, he was nominated and named to the Best Lawyers in America. Mr. Hance has spoken to various groups and organizations throughout the State of Texas regarding family law. These include continuing legal education seminars for the State Bar of Texas Professional Development Program, the Dallas Bar Association, other local bar associations, Judicial Conferences, Texas Legal Services, the Houston Law Foundation Family Law Practice Seminar, and the Association of Family and Conciliation Courts on topics including: Alternate Ways of Handling Family Law Matters, Collaborative Family Law, Practice before Associate Judges, Dealing with Family Violence, the Forensic Psychologist in Family Courts, Significant Family Law Decisions and Legislative Updates, Conservatorship, Discovery, Trial Preparation, Gender Communication Issues, Mediation Techniques, and Ethics in the Drafting of Documents. He was also a co-author of the Parent's Guide to the Dallas County Family Court System. THE COLLABORATIVE LAW PROCESS:

RESOLVING FAMILY DISPUTES WITH DIGNITY

HARRY L. TINDALL ANGELA PENCE ENGLAND Tindall & England, P.C. 1300 Post Oak Blvd, Ste 1550 Houston, Texas 77056-3081 (713) 622-87 33 www.tindallengland.com

. COLLABORATIVE I .,.". ,.. '~,I (J i T! ,'" . -I ·'· ·.... ·· : .' • f I ) . 'I ',' , : • \. ~ • , , " ... ! Second, the col1aborative process follows a step by step "road map" that guides the parties through logical and Rf· ... O J. \. !'.;(; F_-\ I'dlLY DI SPUT ES \.-\l IT H orderly steps to help the parties define, discuss and [;' 1C ;''ilTl resolve th eir confhct Thlrd, the collaborative law process often involves neutral mental health and flIlanclal The cour t system's lt tlgatlOn process IS often not a experts as part of a collaborative learn to provide neutral "family fr iendly" or a "cbild friendly" environment to expert advice and guidance to help the parties and their resolve farruly disputes sucb as divorce, custody or child attorneys more efficiently resolve tbe dispute support issues Parents, spouses, relatives and friends are sometimes forced to take sides in a courthouse dispute C Tile Sllll·(Tur·: [ - Tllc \VRITrc1\,' (OI.L\8(IR·\rl\ E that pits the partles against each other in a litigation L·, \\ P\I~ll( 1I'\1"I()1\: ,J,(dtr.f\Ir.N "I" "war." A true "collab orative" case IS one where the parties Families particlpating in the court syste m's and their attorneys have signed a detailed written litigation process risk the destruction of family "collaborative law participatlOn agreement" that contains relationships, financial destruction and long term the foll owing commitments and agreements: emotional wounds as a consequence of bitter courtroom battles. 1. A commitment not to go to court to resolve any dIspute between the parties. T he parties can Over th e course of the las t ten years, lawyers, mental "opt out" of this commitment in the event either health professionals and financial professionals have party becomes dissati sfied with the process or been working to develop the collaborative process as an in tbe event of an impasse. alternative to the litigation process to resolve emotional family disputes such as divorce, custody and chil d 2. Agreements requiring the parties, the attorneys support issues with as little damage to relationships and and other professionals to treat each other with family finances as p ossible. The goal of the civility, digruty and respect in the collaborative collaborative process is to provide a way to resolve process to create a safe atmosphere to express family disputes tbat is more "user fr iendly" than th e and resolve conflict in a civil manner. tr aditional litigation process 3. A commi tment to concentrate on interest based V/hi le there will ahvays be cases where people will negotiations verses purely positional need the power and fo rce of the court system to protect bargaining. and defend rights , there are many fami ly disputes that can be resolved more peaceably and less destructively using 4. Comrmtments requiring full and honest the collaborative process. disclosure offinancial and other infonnation by both the parties and the attorneys.

5. Commitments which create a structure and time In short, the collaborattve process is a settlement line for the resolution process. Schedules are process that focuses on helping families resolve their created by agreement rather than mandated disputes without gomg to court. The collaborative from the court. process focuses on creating a safe environment for the parties lO express, negotiate and resolve conflict without 6. An agreement that if the partles impasse or opt going to court. out of the collaborative process, the collaborative lawyer s carmot represent either party in litigation between the parties.

The collaboratlve process works by usrng three 7. Commitments from the parties to not spend approaches to resolving family disputes. First the funds outside the normal and ordinary course of collaborallve process has a well defined set of "ground conduct or make mal or financial changes rules" and structure in the form of a written without notice and agreement by all parties "collaborative law participation agreement" that all parties agree to and sign at the beginning of the case. 8 Agreements to use only mutually selected i rrlP 11(') \ The collaborative "team" will always neutral experts These experts cannot testify in lllclude an attorney for each of the parties The future litigation between the parties unless the collaborative process reqUires an attorney for each party parties so agree. -one attorney cannot represent both parties. For the process to be successful1 t tS Important that both attorneys be trained in the collaboratIve process. The attorneys particlpatmg l.Il the collaboratlve process serve as legal A major part of the collaborative process is the step adVisors and advocates fo r their clients but try to by step "road map" that guides the parties toward a participate In the process more as negotiators, educators resolution. In a nutshell, the collaborative process has and factlitators than gladiators or ll tigators. Because six basic steps that take place during a senes of joint neither collaborative lawyer can ever appear in court meetings in which all parties participate. against either party, the lawyers are free to be more candid and conclliatory in theil discussions !!! the Step 1. Estabbshmg Ground Rul es. The parties collaboratIve meetings. discuss and decide whether or not to use the co llaborative law process, discuss and agree to the ground rules of the ! NeuII"L11 /."fel/(o} f/f!ollh P/"()f(!.\·\:(JII{//~ Part of the process and Slgn th e detailed collaborative law collaborative process team is often a collaboratively participati on agreement. trained mental health professional who serves as a "communications facilitator." The conununi cations Step 2 Detennine the Goals, Interests and Concerns facilitator is a mental health professional trained and of the Parties. The parties spend time developing each experienced in helping peap Ie manage their emotions and party's interests, concerns and goals and the shared comrnunicate constructively in an emotional atmosphere, mterests of both partles. The parties also discuss the There is a saying or concept that "men are from M ars and interests of the children if children are involved women are from Venus." When men and women get divorced and when there are emotional issues in that Step 3. Handle Temporary Issues. The parties divorce, husband and wIfe or morn and dad may discuss and negotiate resolution of any immediate communicate as if they are a lot further away from each teinporarj matters that need to addressed. other than Mars and Venus,

Step 4. Gather Inforrna tloTI . The parties gather and Lawyers have little or no fonnal training in how to exchange whatever infonnation is necessary for the help people deal with overwhelming emotions. Much of parties to develop and evaluate poss ible settlement what lawyers do as a matter of routine affects people In an options. emotional way that is often unintended by the lawyer. For years, lawyers have been struggling to help clients Step 5. Brainstonn Options. The parties discuss and through an emotional process while for the most part develop as many possible soiutions and options to resolve being untrained and unqualified to address emotIOnal the conflict as possible. issues that confront and at times overwhelm clients.

Step 6. Evaluate the Options. The parties discuss Some say family law is ten percent legal/financial and evaluate the consequences of the avadabJe options and ninety percent mental/emotional. If thiS is so, why and solutIOns and seiect fr om those options the best not bring someone intI) the settlement process who is available option that both parties can agree 1S acceptable. actually trained and sIGlled at managmg the emotions of the parties and their lawyers In the negotiatmg process? E !\[rJl.:J. lit \'\. .11''',1" L \\\', r.i( "l - ~\ Tc \;"1 AI'P!{f),\ClI Tn ~.'ll ' 1'-(; F.,\l 11 \ DI:-'I' [ 'I I- \ Having aneutral conununications facilitator involved In the Jomt collaborative meetings can be invaluable. The collaborative law process often stresses and They can serve to enforce the communicatlOns and encourages the use of a "team" approach to resolvmg behavioral ground rules, help the parties manage famlly dispules. The team approach attempts to make emotional eruptions that develop dunng the collaboratIve the best use of each team member's area of expertise, process and help both the par1Jes and their lawyers

2 CommUnicate and negotiate more effectively with each which process IS better to use to achIeve the settlement, ot her. the collabo rative law process or the litigation process handled With the prtmary goal of settling? 3 .\'elill II I t / I /W I( w I P, Cj l'\ \ I()II( :I ~ Another conunon collaborative process team member IS a In many cases It may be more advantageous for co ll aboratively trained neutral frnanclal profess ional th e parties to attempt to settle using th e collaborative law The financial professional's role is to provide neutral process. In other cases, abuse or family violence issues , financial advice and financial plannIng to the parties, help the stubbornness of the opposing party or their lawyer, the the parties gather financial mforrnation and help the existence of an emergency, the Viciousness of the dIspute parties create and evaluate optimal financial solutIO ns to or other factors may dictate that the best course for a party theIr problems Many times usmg a neutral financial lies in slaying in the litigation process and keeping the expert can help avoid situatlOns where legitimate, useful courthouse more accessib le settlemeor op ti ons are rejected simply because the idea is "his" idea or "his lawyer's" idea. Sometimes a spouse Collaborative law is one of many dispute can better hear a financial idea or fmancial reality if it is re solution options available for parties to resolve their delivered by a neutral voice instead of from one of the disputes. The best dispute resolution optlOn to use for parties or their lawyers. Using a neutral financial expert each case W ll1 depend on the facts, finances, goals and can also help resolve or reduce arguments concerning personalities involved in each dispute. No one dispute financial issues such as the value of assets, the character resolution process will be right for every case. of assets as separate or community property or tax issues in a cost effective marmer. However, in many cases the collaborative law process will have many advantages over trying to resolve 4 ,\('ulrltl CltilJ £I"P('I"/\· In the collaborative the dispute in the litigation process. The following is a process) the parties routinely involve a collaboratively li st of advantages that are often found in comparing the trained mental health professional with expertise collaborative law process to the li ti gation process, regarding children and divorce to help the parties come up with a workable parentmg p lan for the children. This ___ I 111 the CoLiuhor(J[tI'C' L(II" Pmce.\'\' the Focus I '· neutral menta l health professional cannot tes tify for or Solely 01/ Se tL/c.' f1I('1ll against either party. Having a neutral, nootestifying child expert helps reduce emotions by creating an atmosphere If most cases settle, why not use a settlement that is less blame oriented and more solution and problem process rather than a litigation process to settle the case? solving onented. The neutral child expert helps the The collaborative law process is designed with the parties focus on finding a plan that will work for the principle goal of helping people increase the chances that children rather than fo cusing on each party's faults or they will reach a settlement and settle in a way that is less assessing blame for the situation with the children. destructive financially and emotionally to the parties and any children that may be involved. In the litigati on f ~,rJ\ \ ~,' r \( ,r" O r: ~~r:: ll l.l N" F \ " Il LY D I(; puns It\' Tf! E process the whole process, in some fashion, is arranged in C l ·t L , li(II: .\T I\ E f>1(()( r. ~\ \.:L r~~,c'5 TilE L IT1{ ,"'\"ION and around preparing for a trial that ultimately may not 1\-1, 11)1 ' L. occur. Settlement is certainly a part of the li ti gation process but settlement is not the core principle which There are numerous dIspute resolutIOn processes grounds the numerous rules and procedures that govern avallable for people to use to resolve their fa mily law the htigalion process. disputes. They range from getting things worked out at the kitchen table to having a fu ll blown jury trial at the courthouse , Regardless of the dispute resolution process used, most family law cases settle without ultimately go mg to co urt Perhaps one of the greatest benefits of the formal collaborative law process IS that when the formal A question that confronts both lawyers and thetr collabo rative law parti cipation agreement lS signed there clI en ts is - If the case is lIkel y going to ultimately settle, 1S no doubt tha t the partles and their lawyers are serio us

3 about settling (he dispute, Signing a formal collaborative atmosphere in the dispute In the htigatlOn process, law participatIOn agreement commits the parties to discussing or agreeing to such rules if done at all is obligations of ful l disclosure and corrunits the lawyers to usually done In a less explicit ma1U1er. withdrawing in the event the process is terminated, This IS a senous corrunitment to attempt to settle from both the ___ .'i The R!:''f/1l1r!trl('lI! rhol lilt-' (n/luhorwllt' parties and their lawyers. In the lltlgatlOn process, each Lilu I ('I \ ('a/Illu; Loft'r LJIIg(lre D(-'I/I\'e'"'\ Iile Sefl/l'me"1I1 party's commHment to settlmg the case may be different, -! I IllO\p/H.';-e D/ (l1/wIICall) undisclosed or misperceived. In the collaborative law process, the lawyers ___ -1 The Crl//.,,/J'}l'u(il(" LUI; P/'()(l'\S Cff'Ufe\ (I involved cannot litigate against each other or the parties I~,rll(/ .\.for /01 ~)'el//C!II1('I/I t'\ tl R"(lc/ Mup /1) Ihe This reqUlrement has the effect of enormously defusing ("If;1 iltrlll,\':" the emotional and egotistical tensiOn in the room. Aithougb tenSlOns and egos can get strained in the The collaborative process follows a SiX step collaborative process, the collaborative lawyers will never process to resolve conflict: I) establishing ground rules be able to actually fight each other or attack the other by signing the collaboratIve law participation agreement; party in court. This has the general effect of making both 2) detennimng each party's goals, interests and concerns; the lawyers and pal1ies approach each other in a more 3) gathering information each party may need or want in collaborative and conciliatory fashion. Additionally, order to be in a position to negotiate; 4) addressing because the involved lawyers will not be able to temporary issues; 5) brainstorming settlement options and personally carry out any courtroom strategy or tactic, solutions; and 6) evaluating those options and solutions when courthouse options or likely results are discussed, and selecting from the available options the one that best they are discussed in a less personal and less emotionally meets as many of the parties' shared and competing goals threatening way. as possible and that both parties can accept.

6 The '161111" App10ucll f{) 'he ColfaborO{ll'(' In the litigation process, there is no formal "road [,11\ ' PI ()L'{'S,~ i,\ BIIIl,'/ Eng/lillel ~d /01 Df~plde Reso/ulloll map" or process to follow for settlement discussions. Settlement discussions in the htigation process usually Many collaborative law atton1eys encourage theu happen when one party or the other decides to clients to use the "team" approach to the collaborative law communicate a willIngness to discuss settlement or the process, Under the team approach, a neutral mental parties are ordered to mediation by the court. The lack health professional serves as a "communications of a settlement "road map" can lead to problems in the facilitator" and a neutral financinl professional serves as settlement process because the parties are not "on the a neutral financial expert for the case. Using these same page" about even how or when to approach setthng neutral professionals provides the process with a neutral the dispute. This can lead to misperceptions, voice and perspective throughout the process_ The misunderstandings and problems. Sometimes it is helpful presence of a neutral voice in the process often helps for parties in distress to know what is going to happen avoid or resolve impasses and helps redirect and diffuse and when things are going to happen. Having a road map conflict away from the parties involved and at the for settlement helps people know what to expect and problem that is in dispute when to ex.pect it. The usual role of the neutral mental health ___ -I Til(' Crrlla hr1/ 0111.'(-' LUl1' Prrh l'\'~ (', eOle,..,' U professional is to manage the emot lona1 issues o[the case, /_1 \\ f:'IJ/rJu rJ; lulil h;/lIIIIe IIIIIO\/,/ierc keep the parties and lawyers conununicatlng constructively and the help the parties work through In the collaborative law process the parties issues involving their children or other emotlonally commit to foHow written "expectations of conduct" charged Situations aimed at keepmg communicatlOns during the collaborative process civil, respectful and constructIve The usual role of the neutral financial expert IS to The effect of even having these rules and discussing them gather, analyze and explain financial information, prepare between the parties helps defuse the emotional lnventones, prepare spreadsheets, assist the parties In

4 evaluating the short and long term financial effects of This blame onented mentality IS often tremendously settlement proposals and help in generatmg financial distracting from trying to find solutions for children tn solutions Sometimes financial infonnatl on that has been dIstress. prepared by a neutral financial expert Will be more easIly accepted or trusted because the mformation is corning 8 TlI(' Collohol"(lfll-f: Lau P")n'~~ 1.\ (/ Ln,' from a neutral perspective instead on one of the panies Dc,flue/IFt' D/(,/)I//c Re~(ilurlon P, (/l .. ·.\( lOI BU\II!(!~ "e \ Or their lawyers ___The litigation process can be very detnmental to Because these professIOnals are neutrals they the fillancial health of a family business. Sometimes the provide the collaborative process with a neutral voice expense of litigation, the overwbelming demands for throughout the process. Many times a solution can be voluminous document production, the effects of having seen or suggested by a neutral that cannot be seen by the employees being compelled to testify in trials or parties who are engrossed in their own perspectives. depositions and other fall out from ihe litigatlOn piocess Additionally, sometimes a suggestion for resolving the can literally destroy the business the parties are arguing dispute can be more easily heard by the parties when in about. comes from a neutral vOIce rather than one of the parties or their lawyers. The collaborative process aggressively attempts to help the parties resolve their conflict without having 7 1'he Cnl/a/Jo/-alll'(! LaIC P,oces\ Hm' l'... j(l/ (:' the process destroy or diminish tbe value of the family . ,,1:;/1,111 OrlL'lIft'd Tu()!,' (liul Proo'n"es /iJl' CI"ldrL'!1 '.' business. j.,., 1/,:.\ 9 Th" Fw'/ Olsc/o.wre AS.wrUIIC(!.I· of r/le In the litigalion process, when mental health Coi/o/lolClin (' /...m1' P}"()ces.1 Help Reduce' the RJ.\k. of professionals work with the parties or their children In Mt'lklllg a Bod D,'u/ either a therapeutic or forensic capacity, they are likely to be called as a wi tness for or against one of the parties if Collaborative law particip atlon agreements are the case ends up going to court. This can often interfere required by statute to include provisions providing for the with therapy Or prcblem solving because the parties may "full and candid exchange of information between the be more focused on painting the other side as bad or parties and their attorneys ... " Tex. Fam. Code 6.603(c) themselves as good rather than fo cusing on finding and I 53.0072(c). The form collaborative law participation solutions to their children's problems. In a litigation agreement approved by the Collaborative Law Institute of environment, establishing who is to blame for problems Texas bas numerous provisions reqUiring full disclosure. is often the central focus of a dispute. Included in that form collaborative law participation agreement are provisions that: In the collaborative law process, the focus in not on estabhshing blame - the focus is on solving problems. . Require a party's attomey to terminate the Because neutral chIld experts in the collaborative law collaborative law process if a party insists on refusing to process cannot be called to testI fy for or against anybody, disclose relevant information. the parties and the theraplst are better able to focus on problem solving instead of fault finding. The role of a . Awards to the Innocent party 100% of any therapist working wlth children's issues in a collaborative community assets that are later found to have been case is not to function as a Judge or jury but to functIon lntentlOnally not disclosed. as a faclhtator. In the collaborallve process, the requirement of The problem solving onentation of the full disclosure exists Without haVing to be triggered. In collaboralive law process is often especially helpful other words, even if the other side does not ask for the where children are concerned. In the litigatlOn process, informatIOn, the information must be disclosed If a party because the parties are never more than a few days away putting him or herself in the other party's shoes would [rom a pOSSible courthouse confrontation, they have to be want to know the infonnation prior to making a senie!11ent constantly concerned on some level about how they are decision. gOing to attack their opponent and defend themselves

5 In the lItigation process, there are rules governing would have qUickly been able to arrive at a solutio!l where disclosure but they are vastly different than in the both ladies were totally satIsfied. col laborative law process, Full disclosure IS not an assurance of the IihgatlOn process In the litigation WhIle lOterest based negotiations are often a part process, full disclosure often depends on first complYing of negotlatlOns III the Ii ttgatlOn process, the collaborative with the rules of discovery and procedure In the law process embraces thIS concept as a core concep t of ht!gat!on process, parties are required to disclose the entlIe process. Many times by focusmg on the informatiOn that has been requested in the proper maIU1er diffenng mterests and concerns of the parties, a and lS not subject to some procedural or evidentiary "win/win" resolution can be more easdy discovered than objection. Parties trying to settle In the litigation process by facusmg on what a court or jury will or Will not do often forgo fonnal discovery and without formal with a certain set of facts discovery, there are usually no afflnnative duties of full disclosure lmposed or required of the parties unless other __ 1/ Leg{/IF(:"C!s-lrC!M~HcE(fi(i('nrh L'\L',j agreements are made. __In the collaborative law process, the parties do The full disclosure obligations of the nat pay their lawyers to comply With all the procedural collaborative process do not guarantee absolute full rules that govern discovery and the rules of eVldence disclosure in all cases; however, on the whole, the required by the litigation process. The parties do not obligations aDd assurances offul! disclosure required by spend money for their lawyers to interview witnesses, the process create an atmosphere where the parties are prepare direct and cross exammations or practice attempting to insure they have provided full dIsclosure. opening and clOSIng statements that never get used In the litigation process, a goal of at least one of the parties may sometimes be to search for legal and ethical The money that the parties do spend on their ways to avoid being required to fully disclose critically attorneys is all oriented towards actions related to trymg relevant information. to settle the case. The parties do not pay for trial preparation expenses that may never be used

If) TiJi..· Collahorall"t'c PI"OCl!.'1 \ OffeJl Leads (0 {I !j\':/" " (juct!//\ · Oe,i! lor the POI'UC.i Overall, experience has shown that the legal fees associated with collaborative cases are substantially less The collaborative law process expressly focuses than the legal fees associated with a fully litigated case on interest based negotiations. A significant part of the in the litigation process collaborative process involves probing the parties to understand their goals, interests and concerns. I~ Tht! Co/luillJl(lliFC Lilli P'O('(')'I I~ MOIl' Discussions and negotiations are centered on trying to PIll (lie Ih{ll7 (he L,I/gO/If)/I P'"()cel.\ ac hieve settlement options whIch best serve the shared and competmg goals, in terests and concerns of the Because there are no court hearings, depositIOns parbes. or document requests to third parties in the collaborative law process, there is a better chance the An example often used in the collaborative 'parties' dispute will stay private and confidential. process to illustrate this point is the story of two ladies Privacy is a huge concern for many individuals and the fighting over a dozen oranges in the town market. A wise confidentiality proVisions of the collaborative law old Judge appears and quickly solves the dispute by participation agreement and the private nature of the awarding each lady SIX oranges. Both ladles theE become process itselfhcIp the partles better achieve the privacy furious with the WlSe old Judge Before divldmg the they often desire. oranges the judge dId not take the time to ask the ladies why they were fighting over the oranges. It rums out that ,_, The CrJl/ah,),'lllilt' PII)~ ' L"" Hu~ d 8ellt'1 one of the ladl es wanted the meat of the oranges to make )( l'l',llIle Ju!ce and one lady wanted the rinds of the oranges to make a pie. Had the judge simply asked each of the Meetmgs tn the collaborative process are all ladles what their goals, interests and concerns were he scheduled by agreement. There will never be a sirua[ion where a judge is ordering a medIation or

6 heanng during a party's family vacation or during a collaboration to dISCUSS aDd solve problems The party's important business meeting The scheduling of litigatiOn process by its nature is adversarial and meeti ngs in the collaborative process are agreed upon negotlatlOns In that process are more likely to become by all parties and their attorneys. polanzing.

1./ TiH' Po/fle.\ iliI~1 Theil { mll/IOII\ (/I( :HOI,.! In In lILt ' Coll([0()} (I/II 'C' LUII'Pro((,J5 ,he Pmll('\

/.; \',; i' t, ('( i I rO I1/ ill(' Cuu I ! h;))/\~' ,Ill' III COllilOl oj Ihl:' DI.\j.lUf('. IVol fhe Lult I {,I \ lind

TiIO(! /.\ [(!.\S Rl\/, 0/ (I Flghl BC![II"r!t:1I fill' LVllle/ .1 Because the parties carmat rush to the courthouse (/vl.;'nh(/(!ollll7g ,he F/ghr Befll'{'('1/ ,hf! POI-IIi/I when they run mto impasses this allows for a coolin g off period to allow parties to more fully consIder theIr In the collaboratIve law process , the partles by options instead of making an emotional dec lsi Oil that design are put m ultimate control of the process In the puts them in front of a judge three days later. litigation process) the court's imposition of lltlgatlOn Sometimes family law disputes are set on an oriented deadlines may by necessity create situations irreversible course of destructive litigation because of where the parties lose control of the litigation process a temporary hearing that started over a small fire that and the lawyers are forced to make decisions which qu ickly dissolves into a ragtng fo rest flIe. may limit or diminish the control of the parties over their dispute /5 The CO//lIf.onrfJl'e Law Proce,\s CIl'(I/(!S U /':{ ;fr.!r A U/If)'iphell!/()r ('/ eall' e BI clln.\TOrm;l1g Additionally in the litigation process, one lawyer is more likely to get in a disagreement with the other In general, the negotiating atmosphere created in lawyer that gets dealt with by bombarding that lawyer the collaborati ve process is by design less volatile and and his or her client with discovery requests, temporary less threatening, A goal of the collaborative process is hearings or procedural motions, In such a Situation, the to create a safe process to express and resolve conflict. parties may feel trapped in a dispute that is more In general, there is a greater pOSSIbility of creative between their battling lawyers than it is between the thinking and creative problem solving when people are parties themselves. working 1D a caimer, 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 In the litigation process, the parties often either courthouse showdown or a confrontationai deposition agree or are ordered by the court to attend mediation. is more imminent. There is virtually nothing about the Mediation is another popular settlement alternative to litigation process that causes people to feel more resolving a dispute by going to court in most relaxed, less vulnerable or safer. While fear based mediations, the main negotiator is the m ediator instead negotiations can certainly inspire settlement to avoid of one of the attorneys or the clients. In the medIati on confrontatlon, possibie creative solutions may be process, the people with the best command of the facts overlooked in a more heated emotIOnal environment and their interests, the parties and their lawyers, are usually not allowed to negotiate directly WIth the other When attempting to settle m the litigation party. As m the children's game of telcphone, much is process, the language the lawyers and partIes use is lost in translation often very dlfferent than in the collaborative process. In the litigation process) negotiations are more h.kely to In the collaborative p rocess, discussions are be conducted with an "us vs . them" or "gotcha" attitude held in joint meetings with direct cornmumcatlQTI and using battlefield metaphors and language. This between all parties and their lawyers and the chances adversarial attitude and mentality is often polanzmg for rrusunderstanding and ITUscommUDIcatlOn are and can make achievIng settlement more difficult greatly reduced Further the parhes are allowed to While the parties in the collaborative process are negotiate duectly WIth the deCISion makers instead of adversaries and have competing interests, the process through an intermedIary wi th lImIted understanding of Itself attempts to encourage cooperatIOn and the dispute

7 Mediations are often a "one-time" marathon encountered when family members litigate against each settlement conference. Medianon is typically an event other in open co un rather th an 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 partles and thelf attorneys to think thmgs through and give careful consideration to optIOns mstead of making important, bUldmg declsions when the parties may be Hred and under pressure.

Lastly, in the litigation process, mediations are often held when trial is irnrrunent This means the parties may have already Incurred substantial legal fees and tnal preparahon costs and th ese fees and costs can make resolving the already difficult conflict even more chall enging Trial preparation costs are not part of the collaborative process.

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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 \\·\v\v .c l)ll<~b L'wle:\.as on: The Collaborative Law Institute of Texas is a statewide organization attempting to inform the public, attorneys, mental health professionals and fmancial 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 in formatIOn for collaborative lawyers, mental health professionals and fmancial professionals. The web site also includes numerous articles and lmks to other collaborative law web sites.

The collaboratlve law process is not appropriate for all cases and certalnly is not a perfect or foolproof process However, for fa milies having legal di sputes who have both real conflict and a deSire to settle their differences without going to co urt, the collaborative process will offer hope for many. In many cases, the collaborative process will be better able than the htigation process to mcrease the chances tha t the dispute Wi ll be resolved 10 an acceptable way without the family having to endure the difficulties