Collaborative Law:An introduction to the collaborative law approach and its use of

the interdisciplinary model to successful resolve family law disputes

Presented by

Julian N. SchwartzBashara and Schwartz, P.C.

The Courthouse is often not Family Friendly

• Be financially damaging or destructive• Destroy or damage parent-to-parent

relationships• Destroy or damage parent-child relationships• Destroy or damage extended family and

social relationships

The traditional litigation process can:

In many cases there may be a better way ...

• to restructure relationships• to reduce the pain of divorce for children• to preserve rather than waste assets• to solve family disputes without making

them worse

Collaborative Family Law DefinedCollaborative Family Law is a non-adversarial process focused on getting families from dispute to resolution efficiently, and with as little financial and emotional damage as possible, while securing an agreement which addresses the parties common and individual interests.

Texas’ Collaborative Law Statute

• Parties must sign a Participation Agreement committing to attempt settlement without going to court

• Parties commit to full and candid disclosure of information• Attorneys must withdraw if parties reach an impasse or

opt out of the Collaborative process• All experts must be neutral

In 2001, Texas made history by passing the first Collaborative Law statute in the country. In 2011, Texas amended its Collaborative Law statute with the adoption of the Uniform Collaborative Law Act. The basic provisions of this statute include:

Collaborative Family Law provides a:

• Structured settlement process• For resolving conflict• Focusing on parties’ interests• With customized solutions• Without going to court• Encourages use of the interdisciplinary

approach in the dispute resolution process

How Does the Collaborative Process Work?

• Well-defined ground rules• The Collaborative road map: a step-by-step

conflict resolution process• The interdisciplinary approach makes use of

neutral professionals to educate, advise and guide the parties

Three Defining Principles of Collaborative Law

Clients agree in advance that they will not take any contested issue to court.

Number One

Why is this Important?

• Everyone can focus on settlement without distractions.

• The team creates a “safe container” in which parties can negotiate.

• Formal commitment to negotiate in good faith means more than informal agreement.

In the Collaborative Process …

going to court is used as a hammer to force parties to agree.

In traditional litigation …

Three Defining Principles of Collaborative Law

Number TwoThe process is “transparent.” Everyone agrees to an informal exchange of all relevant information. All experts are neutral and exempt from the court process.

All collaborative law clients commit to respond truthfully to inquiries, to provide relevant information to the other side, and to correct mistakes made by either side.

Three Defining Principles of Collaborative LawNumber Three

Agreements are made through a process of “interest-based” negotiation, where everyone involved is asked to find creative solutions that work for the family.

Husband’s priorities

Wife’s priorities

Children’s needs

Family’s future

Interest-Based Negotiation …• Recognizes the parties’ common goals for their family• Encourages empathy• Acknowledges the fact that the parties will be connected

well into the future, even though they are no longer married

• Clients often find that they share more interests than they had realized.

• Interest-based negotiation frees clients to work toward resolution that addresses everyone’s needs and often results in acts of generosity.

Litigation

Husband’s Attorney Husband

Wife’s Attorney Wife

MediationHusband’s Attorney Husband

Mediator

Wife’s Attorney Wife

The Collaborative Team(Texas Model)

Husband Wife

Husband’s Lawyer

Wife’s Lawyer

Neutral Process Facilitator/Child

SpecialistFinancial Neutral

Much of the work done in Collaborative cases occurs in joint meetings with both parties, both lawyers, and relevant neutral professionals present.

The Collaborative Team is structured so that the most qualified, least expensive professional is doing what he or she does best when the services are needed.

More Than Just Lawyers: An Interdisciplinary Team Approach To

Resolving Disputes• Attorneys function as problem solvers, educators and

facilitators rather than gladiators or hired guns• Neutral Mental Health Professionals manage emotions

and communication, keeping the process on track. In cases with children, they help parents make the best decisions for their children

• Financial Professionals provide neutral financial guidance, gather information and help create and evaluate financial options

Process FacilitatorsCollaborative Law Process Facilitators are mental health professionals who take the role of the “referee” of the team and the process. He or she will ...

Help clients move past their positions and to their interests.

Keep the meetings on track and productive.

Meet with clients outside of joint meetings to help them resolve specific issues.

Manage the emotional content of the meetings.

When children are involved, help the clients with developing a parenting plan

Financial NeutralsFinancial neutrals help gather information and educate clients about their financial estate. He or she will ...

• Help “wrangle” the parties’ financial information into a usable form.

• Create spreadsheets and cash-flow analyses.

• Help educate clients who need help understanding their finances.

Structure: The Collaborative Law Participation Agreement

• Commitment to agree and not go to court• Commitment to communicate civilly and respectfully• Commitment to focus on interest-based negotiations• Commitment to full disclosure• Lawyers are prohibited from litigating• All experts are neutral

The Process: A Problem-Solving Road Map

• Step 1: Establish ground rules• Step 2: Identify interests and concerns• Step 3: Address temporary issues• Step 4: Gather information• Step 5: Brainstorm options• Step 6: Evaluate options• Step 7: Select best agreeable option

Compare Collaborative Family Law and Litigation

• Litigation can be demoralizing, dehumanizing, and destructive to families.

• Litigation is a “Blame Game.”

• Collaborative Law changes the focus from WHO is at fault, to HOW to SOLVE the problem.

Compare Collaborative Law and Mediation

• During caucus-style mediation, clients feel isolated and left out of the process.

• Mediation often makes clients feel under pressure to settle in someone else’s time frame.

• Collaborative Law is an ongoing negotiation. It allows clients to vent if they need to in a safe environment, and to participate fully in the process.

Some things to like about Collaborative Law

• Sensitive family issues remain confidential.

• No public court appearances are required.

• No personal psychological or financial records go into your court file.

Privacy

Most divorcing couples are kind, decent and intelligent people who want to maintain their self-respect and dignity.

These are good people at the worst time in their lives. Often, they are not proud of their behavior.They would like to feel that they have treated their spouse fairly, done what was best for their children, and amicably resolved their differences.

Some things to like about Collaborative LawEfficiency and Self-Determination

Most clients are used to controlling their lives and don’t like having to follow others’ rules, especially if the rules don’t make sense to them.

Clients say…

They want to get through the divorce process as quickly and painlessly as possible.

Some things to like about Collaborative LawEconomy

• Paying two “hired gun” experts to come up with diametrically opposed opinions so the judge can split the difference is wasteful for the clients.

• Hiring neutral experts helps the parties arrive at an agreement using objective standards.

• Corporate, tax, and estate-planning attorneys

• Business and real estate appraisers

• Insurance consultants

In addition to the Financial Neutral and the Process Facilitator/Child Specialist, the following neutral experts can be helpful:

Some things to like about Collaborative LawFuture Relationships are Preserved

Having to testify in court almost always assures that the spouses will be enemies.

And asking friends, business associates and family to choose sides

often leads to relationship damage that

can’t be repaired.

Clients prefer…• Dealing with their spouse

and his or her lawyer in an informal, respectful setting.

• The ability to talk about ideas and feelings in a group situation without fear that their words will come back to haunt them.

Some things to like about Collaborative LawIndividualized Solutions

• The Texas Family Code codifies rules for Judges to apply to parental decision-making, visitation and child support that don’t completely consider individual circumstances.

• Judges are also required to follow rules in dividing property that sometimes don’t make sense for individual clients.

Collaborative Law Clients get Custom Results

Collaborative Law encourages clients to be creative in meeting theirs and their spouses needs based on their unique circumstances.

The Collaborative Law process provides clients with experience they can use in future problem-solving.

Conclusion

• The Collaborative process is not for all cases• No system is perfect or foolproof, but

Collaborative Law clients are less likely to feel they need to be dishonest

• For many families the Collaborative Law process will provide the best available option to preserve relationships and financial resources

Find out more

• Learn more about the Collaborative Law process• Find out about Training Opportunities• Locate other Collaborative Law professional in your

area

Collaborative Law Institute of Texas www.collablawtexas.com

and

Collaborative Divorce Professionals of San Antonio www.collaborativeprofessionalsofsanantonio

AcknowledgementGrateful appreciation and acknowledgement is given to the Collaborative Law Institute of Texas for its assistance and contribution in creating this presentation on the collaborative law process.

Questions?