Devastating Event
Marital and child custody disputes are devastating to individuals
and families on both a short and long term basis. The thought
of such consequences makes it tempting to ignore the problem
with the hope that it will simply go away or somehow resolve
itself. Frankly, that seldom occurs and a failure to address
the problem often makes it worse. If the circumstances require
that you address a family conflict, then the collaborative
law process is an avenue you should consider because it reduces
the negative impact for all concerned.
Collaborative Law - What Is It?
Collaborative law is an alternative to the “win at all
cost” approach frequently seen in the litigation of
family law cases. Communication and negotiation skills coupled
with knowledge and experience in the field of family law differentiate
collaborative attorneys from their litigation counterparts.
Collaborative lawyers are committed from the outset of the
dispute to resolve matters via an agreement rather than through
a contested trial.
The collaborative law system is based upon the agreement
of the parties and their lawyers to negotiate their way through
the issues and thereby avoid using the public arena of the
courthouse. A series of settlement conferences are conducted
during which the pertinent issues are defined and solutions
are tailored to resolve the areas of conflict. The objective
of the process is to construct a settlement agreement that
1) addresses the needs of the parties, 2) reduces the expense
of the conflict and 3) minimizes the trauma experienced by
the parties. An important by-product of the process is the
ability of the parties to deal with one another in a civilized
manner after the suit has been concluded.
What Makes The Collaborative Process Unique?
The commitment of the lawyers to work within the negotiation
process and avoid the litigation system. A written agreement
is signed by the parties and the lawyers stating that each
of them is committed to pursuing all avenues that may lead
to resolution of the conflict short of litigation. The collaborative
law agreement also provides that if a solution can not be
reached, the lawyers will withdraw from representation of
the clients and refer them to competent counsel to litigate
the remaining disputes. In other words, both the parties and
their lawyers are locked into the negotiation process and
pointed toward the same objective – solving the problems.
Ethical attorneys endeavor to minimize the cost of their
services to their clients. Unfortunately, there are members
of the legal profession who are not as diligent about doing
so and everyone has encountered the horror stories associated
with the multi-year, mega-bucks cases from which the lawyers
profited while the parties suffered. From the client’s
perspective, the collaborative process provides the parties
even more control over the cost of the dispute by mandating
that it be handled outside the courthouse.
Is The Litigation Process A Monster?
Yes and no. The litigation system offers an avenue to handle
disputes that is far superior to those utilized in other parts
of the world. For some people and some disputes, there is
no method short of a trial that will bring a conflict to a
conclusion. For that reason, the litigation process is a valuable
tool within our society.
On the other hand, the litigation system has several definite
costs inevitably associated with it: 1) the loss of time,
2) the expense of attorneys’ fees and 3) the emotional
or psychological cost. Even when the litigation process operates
at peak efficiency, those three costs mount and take their
toll on the litigants.
Settlement Vs. Litigation
The vast majority of family law disputes are settled without
proceeding to trial. What differentiates one case from another
is the level of expenses incurred prior to reaching a resolution.
Clearly, if the loss of time, financial expense and psychological
toll can be reduced, the parties are better off than they
would otherwise be.
Initiating a case in the litigation system places into effect
certain timetables that are built into the rules governing
lawsuits. Although the deadlines help move the matter along
through the process, they can force the parties into the expenditure
of time and money that might not be necessary if the procedures
had some flexibility about them.
Collaborative law allows the parties to establish the order
of events and time boundaries that are appropriate in their
particular case. The process also allows the participants
to define the sequence in which the issues are addressed.
In effect, the collaborative process permits the parties to
fashion a set of rules that are customized for application
to their particular case.
Why Is A Settlement Better Than A Judge’s Order?
Family law cases, particularly divorce suits, are different
than other lawsuits. Generally, the parties are embroiled
in emotional turmoil and beset by a multitude of problems
that leaves them feeling that their lives are entirely out
of control. As the dispute escalates, the financial resources
of the parties decrease and the economic squeeze adds to the
elevated anxiety levels. In short, the parties are forced
to address difficult problems at times when they are not best
equipped to do so.
Texas family law is replete with rules that lend a level
of predictability to the process, but may not provide the
best result in a particular case. Likewise, there are other
parameters that the judge will impose in reaching a decision
in a contested family lawsuit. The net effect is that there
are some things the court can not do and other things the
court will not do. Those “Can’t Do” and
“Won’t Do” limitations seriously restrict
the alternatives available to a judge in handling a family
law case. In turn, the results that a party can reasonably
expect from the trial of a case are considerably narrower
than the spectrum of alternatives that can be considered via
negotiations.
Generally speaking, the best solutions in family disputes
involve crossing some of the “Can’t Do”
and “Won’t Do” lines. That means the parties
must negotiate an agreement and avoid litigation in order
to achieve the best results in their case. The collaborative
law process widens the range of possible results by including
the alternatives that are off limits if the matter is presented
to the court and encourages the parties to construct an agreement
that encompasses benefits for each of them.
Control Over The Result
The litigation process is adversarial, competitive and disempowering.
It culminates in the parties surrendering control of their
fates to the judge or jury. Obviously there are risks involved
in the process and even the best of litigation lawyers refer
a trial as “rolling the dice”. The only certainty
is that judge will sign an order dictating to the parties
how their lives will be altered from that moment onward.
Within the collaborative process, the parties and attorneys
retain control over the final outcome. Doing so increases
the odds that the final settlement terms are “workable”
and that both parties will perform their future obligations.
Fashioning the resolution of the disputes also lays the groundwork
for the parties to minimize future conflict.
Are Two Lawyers Necessary?
Yes. The reason is simple – each party needs a legal
advisor whose primary concern is the welfare of one client.
By providing the clients with legal and practical advice,
the attorneys establish a sense of stability for the parties
while assisting them toward the resolution of the case. In
addition, the collaborative lawyers guide the process along
a constructive path and set a pace commensurate with the abilities
of their clients.
Is Collaborative Law For Everyone & Every Case?
No. Although the process can assist in rearranging a client’s
perspective and priorities, it is not a miracle cure for all
the ills spawned by family conflicts. Persons intent on using
the litigation process as a punishment tool or desirous of
wreaking financial havoc or interested in inflicting psychological
trauma are generally not good candidates for the collaborative
law process – at least not at the outset.
What Do I Have To Lose?
Some time and some money. Of course, the same is true of the
litigation process and the costs of both time and money are
usually greater in that arena.
How Do I Know This Will Work?
There is no absolute warranty that the collaborative process
will work. However, there is one very important assurance
- there will be no settlement made without your agreement.
That is your guarantee that nothing will happen without your
knowledge and consent.
Goals Of The Process
1. An equitable settlement agreement that is “workable”
from the perspective each party.
2. The minimization of damage to family relationships, particularly
those that will extend beyond the date the case is closed.
What If My Spouse Will Not Agree To Collaborative
Law?
You don’t know until the question is asked. Experience
over the past several years indicates that a growing percentage
of people faced with domestic relations problems are turning
away from the litigation process and toward collaborative
law for solutions – even in the tough cases.
The lawyers who comprise the Dallas Alliance Of Collaborative
Family Lawyers are veterans of the litigation process as well
as practitioners of collaborative law. Every one of them is
perfectly capable of handling any domestic relations matter
through the traditional litigation system or via the collaborative
process. Therefore, Dallas Alliance members can assist you
even if your spouse refuses to participate in the collaborative
process.
Share The Information
Sharing this booklet and the roster of Dallas Alliance Of
Collaborative Family Lawyers with your spouse is a very good
idea. Information and a level of comfort can be realized through
a telephone conversation or a face to face conference with
any prospective lawyer. Indeed, it is probably not wise to
retain an attorney without doing so. By sharing this booklet
and the roster with your spouse, you increase the likelihood
that he/she will contact a competent lawyer and, hopefully,
decide to pursue a collaborative approach to the dispute.
How Do I Start?
Enclosed is a membership list for the Dallas Alliance Of Collaborative
Family Lawyers. These people are not the only local lawyers
trained in collaborative law, but they are among the best.
With the few noted exceptions, all of the attorneys are certified
by the Texas Board Of Legal Specialization in family law and
every one of them has many years of experience in the field.
Contacting one of these attorneys and voicing an interest
in learning more about the collaborative law process will
be the best first step for you. You should also encourage
your spouse to take that same step.
|
