The litigation model for resolving disputes is based on the concept that the parties are adversaries competing against each other to convince the judge or jury that their position is the correct one. The process forces parties to become entrenched in their positions to try to “win”; therefore, it drives parties farther apart. It necessitates unnecessary discovery of information because the attorneys have an obligation to perform a due diligence inquiry regardless of whether the information is really necessary, and it encourages the parties and attorneys to be destructive. The Court is restricted to legal options for solutions that may not be the best for the parties. In Texas, mediation is often employed as a part of the litigation model. The parties and their attorneys typically go to mediation after much of the trial work has been done. The process is adversarial and although the goal is settlement, the mediator has no interest in what the settlement is, and there is little focus, if any, on the interests of the parties. Mediation usually occurs in one day and lasts 8 or more hours. Each party and his or her attorney are in separate rooms and rarely have contact with each other. It is a very stressful environment for making significant decisions.
Not every client has the ability to engage in the collaborative process. For those who do, they recognize the benefits of a process that focuses on addressing the needs of everyone in the family, rather than tearing the family apart. They recognize that divorce doesn’t end a relationship. It changes the relationship and it is important to learn how to make that new relationship work. They recognize the value of a team of attorneys and allied processionals with particular areas of expertise to assist them.
- Attorneys use their abilities to analyze and problem-solve
- Communication Consultants (“Divorce Coach”) manage and facilitate the emotions and communication both at and outside of joint meetings
- Financial Specialists provide information to facilitate division of assets and obligations, and support issues
- Child Specialists may assist regarding issues related to the children
- Vocational Specialists may assist parties in changing careers or re-entering the workforce.
The agreement by the parties and collaborative attorneys that the collaborative attorneys will not go to court focuses the parties and attorneys on finding creative solutions to settle the case in a way that is acceptable to both parties. In the litigation model, when the parties are unable to resolve issues, it is very easy to run to the courthouse for answers rather than continue working to find solutions. However, the withdrawal requirement is the carrot that keeps everyone working toward resolution: the clients don’t want to hire new attorneys, and the attorneys want to continue to work with the clients and help them be successful. The withdrawal requirement also provides a safe environment for everyone, because no client has to worry that the other collaborative lawyer will ever cross-examine him or her in trial.
If the parties cannot reach an agreement, a neutral attorney, and litigation opinions may use then other options for settlement within the Collaborative process such as mediation, case evaluation. If an agreement still cannot be reached and the parties elect to go to court, then the collaborative attorneys withdraw and each party retains a new attorney for trial. The collaborative attorney will assist with the transition to the trial attorney. Depending on when the parties switch the case into litigation, a lot of work will likely have been done in the collaborative process, which can be used to assist the trial lawyers. Most cases are successfully collaborated, but for those that are not, nothing was lost. Had those cases started out in litigation they would likely have been contentious and expensive.
The parties and attorneys sign a Collaborative Participation Agreement in which they agree to voluntarily share and exchange information that is necessary to make decisions. The attorney is obligated to work with the client to comply with disclosure. If all attempts fail, then the attorney is obligated to terminate the Collaborative process.
In the majority of cases, the cost is less than what it would have been if the parties had elected litigation. There are some relatively simple cases that can be handled cheaper outside the Collaborative process. However, even some of those clients choose the collaborative approach because of the superior product that is delivered. Some clients have questions about the team approach. In litigation, each side builds a litigation team of experts for such issues as custody and property division. Each side has their own team which doubles the cost, because in Collaborative Divorce all allied professionals are hired as neutrals to work for both clients. Clients should not choose the Collaborative process based on price, but based on the value of the process.
A client should consider Collaborative Divorce if:
- You have a desire to obtain an outcome that is custom-made for your situation
- It is important to maintain control over the process and your future
- Despite the differences with that exist, you can commit to problem-solving in good faith
- It is important to maintain a civil or amicable relationship with your spouse and/or other family membersThe emotional well-being of your children is important
- You value privacy for your family
- You want to communicate effectively with your child’s other parent regarding issues affecting your child
You need to find an attorney who is highly skilled in both family law and collaborative law. Collaborative Divorce requires special skills, so you should inquire about the level of training the attorney has: did they take one course, or do they continue to work on their skills? How many cases have they done? Once you hire a Collaborative Attorney, you can discuss with the attorney how to approach your spouse, or you can direct your spouse to this website or one of the websites on the Collaborative Resources page.