During the Holidays, while families are counting their blessings and remembering the things for which they are grateful, it seems appropriate to remind people that Family Law disputes can be resolved through the Collaborative Law method. In fact, Collaborative Law is especially well-suited for divorcing parents with a high degree of common interest in an amicable and private completion of their case.
The entirety of Chapter 15 of the Texas Family Code is devoted to Collaborative Family Law. Generally, the Collaborative Law method contemplates that the parties will not engage in litigation to resolve their Family Law disputes. Instead, they will engage in a series of structured meetings with lawyers and possibly other professionals to find complete solutions to the matter at hand. The traditional or “litigation model” means that parties can resort to court hearings for interim disputes all the way through a case and ultimately to a final trial in the event the case cannot be settled through negotiations. The bottom line in the litigation model is that a court is always there to conduct a contested adversarial hearing with evidence, accusations, contentions, and a conclusion possibly handed to the parties by a judge, who is a relative stranger to the parties and their children. By contrast, if the parties choose the Collaborative Law model, they can avoid airing their disputes in a public forum and leaving the major decisions about next phases of their lives to the relative stranger judge. In addition, instead of spending time, money and resources planning and preparing for an adversarial hearing that necessarily requires tearing down the opposition while building up one’s own case, the time, money and effort in a Collaborative Law case is spent problem-solving with all parties, counsel and professionals present in collaborative meetings.
At the outset, the parties sign a Collaborative Law Participation Agreement. That agreement is filed with the court. The court is informed that the parties do not intend to have contested evidentiary hearings. Indeed, if the Collaborative Law process resolves all issues, the court only receives the necessary documents to initiate and then approve the divorce or case. Collaborative Law meetings are scheduled as the participants can all accommodate. In the early-going, the meetings are about identifying each party’s interests, assembling a list information that the lawyers know will be needed to complete the case, making a list of disputed issues, and identifying a roadmap to conclusion. Once these tasks are set in motion, the parties can begin to negotiate to resolve their disputes. As time progresses, issues get resolved one by one until all identified disputes have been resolved. The process can take just as long as a litigation lawsuit and cost just as much.
The entire Collaborative Law process is confidential up until the time a final order or Final Decree of Divorce is filed with the court. There is also no predetermined timeline to completion of the case. If parties can manage this process and continually make progress toward completion, they can avoid animosity that sometimes is made worse between opposing sides in the litigation model. Parties with children sometimes find they can better present a united front about parental issues through a Collaborative case than they would have been able to manage in the litigation model.
With all the foregoing advantages acknowledged, one might wonder why not all Family Law disputes are resolved through Collaborative Law. There are some drawbacks that sometimes emerge. First, a Collaborative Law case is a great haven for a party who wishes to resolve nothing and merely wishes to keep the case going. Most people do not exactly relish being involved in a dispute for a long period of time, but some parties simply cannot compromise to reach an agreement. There is no way to bring a Collaborative Law case to a successful conclusion by any date certain. The meetings merely continue until agreement on all issues is reached or a party decides to terminate the process (see below). By contrast, in a litigation case, either side has right to set the case for final trial if their opposition simply will not reach any reasonable settlement.
A party can terminate the Collaborative Law process once it is begun. That does not, however, complete the process of resolving disputes. If disputes remain when the Collaborative Law process is terminated, those disputes likely will need to be resolved through the litigation model. Essentially, parties start back at square one in the litigation model if the Collaborative Law process is terminated. To make matters worse, the law prohibits attorneys who assisted in a Collaborative Law case from serving as litigation counsel once the Collaborative Law process is terminated. So, the parties then have to hire new counsel and virtually start their divorce or Family Law dispute over.
Despite these drawbacks, the overwhelming majority of cases that begin the Collaborative Law process are able to successfully complete them.
Collaborative Law is not appropriate for all cases. Where there has been family violence or other factual circumstances that prevent either cordial meetings, or ones where all parties feel safe, the parties likely should not choose Collaborative Law. Where it is apparent that the dispute is high conflict for any reason, a Collaborative Law case is likely not preferable.
On a case-by-case basis, an evaluation by an experienced Family Law attorney can assist in determining if the case is appropriate for Collaborative Law. The Law Office of David A. Kazen is trained in Collaborative Law and experienced in litigation cases as well. For a careful analysis of whether your Family Law matter is appropriate for Collaborative Law, schedule a private consultation with the Law Office of David A. Kazen.