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.