Collaborative
Law: The Bloodless Alternative
The
death of any relationship can be devastating, whether the relationship
is familial, a friendship or a marriage; whether the death of the
relationship is caused by physical death or by emotional dissolution.
Fighting during and after the demise of the relationship only deepens
the wounds and prolongs the pain, but sometimes, especially in divorce,
the decision to fight is controlled by only one party to the relationship.
In those situations, preparation for litigation in court by both
sides is the only avenue of action. Trial preparation is expensive.
Actual trials are even more expensive. (Please note that I have
separated the two events. They are, in fact, separate and distinct
events, a fact which most litigants do not appreciate.)
In Texas, where trial courts are clogged with a backlog of cases,
all litigants are required to attempt mediation prior to commencing
trial. And in truth, this is working to some degree. 93% of all
cases settle. But, still, our courts are backlogged
One might assume that by avoiding trial, these cases are concluded
inexpensively. One would be very wrong! Remember the caveat at
the end of the first paragraph? Read it again. Unless both parties
are clear from it’s the beginning that they will not resort
to having their matter decided by a judge or jury, both lawyers
are forced to commence preparing for the trial of every case from
the first moment s/he meets with her/his client. 97% of each lawyer’s
time in a case is spent preparing the case as if it were one of
the 7% of the cases which will actually go to trial. There is
no way for the lawyers to know which case will be tried. The purpose
of this article is to explain divorce litigation to prospective
clients (and, hopefully, their spouses) and suggest an alternative.
PREPARING FOR TRIAL:
The first step in preparing for litigation is the education of
the lawyer about the client, the opposing party, the facts of
the case, the legal aspects of the case and the estate itself.
The operative phrase here is “first step”, and this
step can be expensive in and of itself.
How does the attorney get the information with which s/he becomes
educated? By asking the client to tell his/her story. “Tell
me the good, the bad and the downright ugly.” And where
do you think the attorney, and, therefore, the client must focus
their attention? On the good? Or on the bad and the downright
ugly? This is where the lifelong emotional scarring begins. Clients
are required to open old wounds, dredge up old memories and hurts
and focus on them in such a way as to cast the opposing party
in a bad light and the client in as good a light as possible.
This focus on the negative in one’s life for the duration
of the litigation, which can last as long as six to eighteen months,
prevents healing from the loss of the relationship.
The second step is the gathering of information for trial. This
includes documents and other tangible evidence in the possession
of the client, the opposing party and third parties. It may entail
the use of investigators, forensic experts, consulting experts
and the like. These people are never cheap. It usually involves
the taking of oral and written depositions, both being expensive.
The third step is the analysis phase. Having gathered everything
relevant about a couple’s life into boxes of documents,
the lawyer must analyze and assimilate all of the information.
This information does no good in the client’s head. It must
be in the attorney’s head. What does the evidence say and
how can it be used for or against the represented party? This
takes time and time is money; and, it may take lots of time for
one individual (and perhaps some needed support staff) to assimilate,
interpret, categorize and organize the years of information about
two people’s lives in this comprehensive manner.
The fourth step is actual preparation for trial. Now, the lawyer
has to synthesize the information into a strategically planned
presentation. Remember those judges with the backlogged trial
dockets? They sit about six hours a day listening to cases. They
listen to endless details about people’s lives and problems.
Judges are human beings, with all their wonder and all their limitations,
sitting in judgment of the situations of other human beings. Some
of them are good at what they do and others are not. That is why
your attorney must spend adequate time preparing a presentation
geared to this particular judge. Every judge is different and
responds differently to similar situations presentations. Every
judge has preferences and some have prejudices and biases. It
is your attorney’s job to know this information about the
court to which you have been assigned and to prepare the case
for trial with that information in mind. This takes a great deal
of thought and time and time is money.
MEDIATION
Once the case has been prepared for trial before a particular
court, it is possible mediate because the lawyers have enough
information about the case to grasp the parameters of settlement
possibilities. But, first, the Mediator must be educated. The
Mediator must have an outline of the case from each attorney’s
perspective and a range of settlement possibilities. And the client
must be prepared for the mediation process. More time. More thought.
More money.
Mediations typically last only one day, though on occasion a mediation
will extend beyond that. Both lawyers attend the mediation with
their clients. Sometimes a consulting expert, such as a financial
planner, CPA or psychologist, will also attend or at least remain
on telephone standby to provide input into the process. Often
times the children’s attorney will also be present for all
or part of the mediation. All of these people are being paid by
the hour. Oh, yes, and then the Mediator must be paid.
SUCCESSFUL MEDIATION:
In the vast majority of cases, mediation is successful. At the
conclusion of a successful mediation, the attorneys and Mediator
will prepare a document called a Mediated Settlement Agreement,
which, once signed by the parties, the attorneys and the Mediator,
is irrevocable. Neither party can back out. This document is filed
with the Court and the Mediator files a report with the Court
indicating that the case has settled and that a Final Agreed Decree
will be delivered to the Court for signature. The Mediated Settlement
Agreement is a fairly detailed outline of the settlement, but
it is not in “legalese”.
WORK AFTER SUCCESSFUL MEDIATION
Additional work will be required by both attorneys to get the
Final Decree in proper form and there will likely be documents
ancillary to the Final Decree which also must be prepared. Though
the major expenses of litigation are now behind each litigant,
preparation of final documents can be far more difficult, time-consuming,
frustrating and expensive than litigants anticipate. The lawyering
continues in the drafting. A carefully crafted document can box
a litigant in or leave doors slightly ajar for the party, using
the same Mediated Settlement Agreement as the starting point.
And, both lawyers know that, so each will be looking to prepare
a judgment with the least restrictions for his/her client while
locking the opposing party in as tightly as possible on all agreements.
The next-to-final step is going before the Judge to make the oral
proofs required by law and obtain the Judge’s signature
and oral pronouncement of divorce.
Then the final step, from the lawyer’s perspective, takes
place. A certified copy of the Decree and certain other relevant
documents are ordered from the District Clerk and sent to the
appropriate agencies or entities. Wage withholding orders are
sent out to employers. Deeds, Deeds of Trust, Deeds of Trust to
Secure Assumption, Real Estate Lien Notes, Powers of Attorney
and Assignments of Interest are filed with the County Clerk and
then sent to the appropriate people, companies and agencies. There
can be numerous types of closing documents in a case and numerous
people or entities through which they must pass before the implementation
of the agreement is complete.
FAILED MEDIATION - GEARING UP FOR TRIAL
But, what happens when the mediation fails? After the Mediator
declares an impasse and notifies the Court of that impasse in
writing, each attorney must gear up for trial. Now s/he commits
even the minutia to memory. S/he practices the presentation. S/he
must copy the documents, mark exhibits, exchange exhibits, make
exhibit lists, prepare trial motions for the court, prepare the
jury charge if it has not already been done or carefully hone
its wording for submission, prepare proposed divisions of property
for the court, prepare suggested rulings regarding the children
for the court, prepare aids for the court and/or jury (these are
not necessarily evidence, though they can be, but are usually
used as visual aids to the oral presentation), subpoena the witnesses,
pay the experts, refine the strategy, etc. As a general rule,
two hours of preparation time are needed for every hour of anticipated
non-jury trial time. Three to four hours of preparation time are
required for every hour anticipated for a jury trial.
TRIAL
Finally, trial begins! This day or these ensuing days, depending
on the length of the case, will be long days for the attorney
and client. It is imperative for clients to understand that there
is a great deal of “down time” in the courtroom. Ancillary
matters pertaining to other cases either delay the start of trial
each day or cause numerous interruptions during the course of
the trial. This waiting and these interruptions are frustrating,
disruptive and exhausting. And, attorneys are paid during this
down time.
If the trial lasts more than one day, there will be additional
work to be done in the attorney’s office and perhaps with
the client or witnesses before the commencement of each succeeding
day. If a trial carries over into a succeeding week, the weekend
will be filled with additional work for twelve or more hours per
day. And, then, finally, the trial is over.
AND AGAIN - THE FINAL WORK
After the trial, the court’s judgment must be reduced to
writing and all of the ancillary documents prepared in the same
manner and with the same expense described above in the post-successful-mediation
section.
COLLABORATIVE LAW - AN ALTERNATIVE
A COUPLE’S CHOICE
There is an alternative to the emotional and financial bloodbath
described above but it takes BOTH PARTNERS agreeing NOT TO FIGHT,
not to subject themselves, their estate or their children to what
has been described above. And, during the alternative process
of getting to divorce, it takes these two people recommitting
themselves to that promise over and over again during the impasses,
arguments, frustrations and bouts of fear.
THE PROCESS - HOW IT CAME TO BE
First, let me say that I have been hearing the pleas of litigants
for years for some more sane way to get divorced and for a process
that is gentler than mediation the way it is practiced in Texas
(other states do it very differently). The concept of Collaborative
Law was developed by a lawyer in Minnesota over ten years ago.
Since the, Collaborative Law has spread of its own volition and
is winning favor in every state where lawyers have voluntarily
trained to learn this new way of getting clients through the divorce
process. While Texas is a newcomer to the process, it is the first
state in the nation to have a statute which acknowledges Collaborative
Law as an alternative to litigation and prohibits the courts from
interfering with the Collaborative Law process once litigants
have declared their desire to avoid litigation. This is important
in light of the “rocket docket” philosophy mandated
by the Texas Supreme Court which attempts to force all cases to
trial or settlement within six months. The new law prevents the
courts from imposing arbitrary deadlines on litigants, with which
attorneys must comply, and which cost the litigants additional
money but which will in no way achieve the goal of a swift trial
or settlement. The Texas Collaborative Law statute avoids all
of that by instructing the District Clerks to literally move the
Collaborative Law cases off the courts’ trial dockets, thereby
avoiding imposition of arbitrary deadlines and their associated
expenses.
THE PROCESS - HOW IT WORKS
In CL, the parties and their collaboratively trained attorneys
agree:
- not to take their divorce dispute to court
for any reason;
- to attend a series of four-way meetings where
each issue of the divorce will be discussed, all fears about
the future will be aired, all alternatives will be examined
and conclusions satisfactory to each party will be reached with
compassion and respect for the needs, wants and fears of each
party; and,
- to enter into a Participation Agreement, which
is a contract which sets forth, at a minimum, the following
matters:
- neither party will seek court intervention during the
process, with the exception that the parties may agree to enter
into Agreed Temporary Orders through negotiation, which orders
are then filed with the Court and signed by the Judge, thus
becoming enforceable orders in the event the Collaborative Law
process should be terminated;
- both parties will be absolutely honest and not only disclose
all information requested by the other spouse, no matter how
damaging or painful, but also voluntarily provide all documentation
requested or known to be reasonably needed by the other spouse
in order to make an informed decision about the division of
the estate and/or custody, support and possession of or access
to the minor children of the marriage;
- the parties will not dredge up the past and will not make
unfounded accusations out of pain and anger;
- the divorce issues will not be discussed with the children
or in the presence of the children without the joint consent
and presence of both parties and, possibly, with the input,
advice and/or presence of a mental health professional trained
in child development;
- the parties may use a jointly retained, neutral expert where
needed to understand or resolve an issue and this expert will
be formally bound to the same standard of good faith and full
disclosure as the parties;
- in the event of a perceived impasse, the parties will bring
in a trained Mediator to attempt a resolution of the problematic
matter before discontinuing the Collaborative Law process;
- neither party can be forced to sign any agreement unless the
party fully understands the agreement and desires to enter into
the agreement; and,
- should an impasse occur or should one party decide to terminate
the Collaborative Law process and seek court intervention BOTH
ATTORNEYS MUST WITHDRAW FROM THE CASE AND WILL BE, THEREAFTER,
FOREVER DISQUALIFIED FROM REPRESENTING EITHER PARTY OR IN ANY
MANNER PARTICIPATING IN FUTURE LITIGATION BETWEEN THE PARTIES
and any jointly retained experts will also, thereafter, be disqualified
from working on the case or testifying at trial. The departing
attorneys are allowed to assist their respective clients in
retaining litigation counsel and making an orderly transition
of the file.
After a series of four-way meetings, as many as needed, over as
long or short a period of time as is required to achieve the goal,
on a schedule which accommodates the lives of the parties and their
children, using jointly-retained experts when and if needed, the
parties will end up with an AGREEMENT FASHIONED BY THE PARTIES,
which has not been handed down by some disinterested stranger(s)
with limited facts about this couple and their children.
Once the agreement has been reached, the attorneys then must prepare
the Final Decree of Divorce and other ancillary documents to implement
the agreement in the same manner described in the section on “FINAL
WORK” above.
BIGGEST FEARS ABOUT COLLABORATIVE LAW
Most people are intrigued by the idea of Collaborative Law until
they get to the part about both attorneys being required to withdraw
in the event of unresolvable impasse or the unilateral decision
of one party to terminate the process. The greatest concern is that
the money invested in the process will have been wasted. My two
responses are simple. In reality, this rarely ever happens and the
vast majority of the work accomplished by the collaborative lawyers
is not lost. It is simply passed on to the litigation attorneys.
In making the decision to enter this new field, I spoke personally
with experienced collaborative attorneys across the country, read
numerous articles by them and attended seminars put on by them.
It was the first concern I expressed to them, and they responded
similarly to me. Because of the work done with each party by each
collaborative attorney, the people who make it far enough into the
collaborative process to sign a Participation Agreement have been
made aware of the complexities of the process and have determined
in their own minds that the horrific emotional and financial disadvantages
of the litigation process are to be avoided at all costs. When an
impasse is imminent, the attorneys refocus their clients on that
original decision. It is quite effective.
In those rare cases where the parties are unsuccessful in the collaborative
process, each attorney has the responsibility of bringing the new
litigation attorney “up to speed” in the sense that
the attorney’s file, including the attorney’s work product,
mental impressions and documents exchanged are turned over to the
new attorney. The litigation attorney then picks up where the collaborative
attorney left off but broadens the scope and depth of the discovery
process in order to prepare for trial.
The second greatest fear of potential participants concerns the
perception that the other spouse will not be forthcoming with information
or documentation or will simply not listen to what the fearful spouse
has to say. It is here that the collaboratively trained attorneys
do their best work. It is the responsibility of the attorney representing
the recalcitrant client or the overbearing client to correct the
client’s inappropriate behavior and secure his/her cooperation
in the process. Additionally, because the attorney representing
the other spouse has the right to speak directly to this recalcitrant
or overbearing spouse, this attorney, too, is able to work at redirecting
that behavior. With the two attorneys working toward the goal of
maintaining the integrity of the collaborative process, inappropriate
behavior is usually corrected sufficiently to get the couple to
the end goal of an agreed divorce.
“TOP 5" ADVANTAGES OF CL
I know, its supposed to be the “top 10", but for the
sake of brevity, we will stick with five because, these five are
the opposites of the litigation process:
- 5. Cuts down on duplication of work done
by attorneys and experts, leading to a significant savings of
money! One of the things I pointed out about the litigation
model was that at all times, two attorneys were doing the same
work at the same time and each charging by the hour to do that
work. That is a huge expense. In the Collaborative Law process,
this duplication can be cut by at least 50% or more because
of the narrowing of the scope of investigation and the ability
of each attorney to obtain information directly from both parties
in informal discussion without the resort to expensive discovery
tools. The use of jointly retained, neutral experts obviously
cuts down on costs; but, there is another aspect to this element
which is not apparent to the layperson. One neutral expert can
sometimes do either the gathering and/or analysis of information
at an hourly rate which is less than either attorney’s
hourly rate. A well-qualified expert might, for instance, analyze
investment information or financial planning options for the
couple and make a presentation to the attorneys and the parties
at a four-way session, thereby eliminating hours of work by
both attorneys. This is not to suggest that attorneys would
abdicate their ultimate investigative or analytical responsibilities,
but this technique can diminish the time necessary to reach
a conclusion. That leaves more money in the estate for the parties
to divide.
4. Promotes effective communication! In order to come
to an agreement into which both parties are willing to enter,
there must be some “serious talking.” Whatever communication
problems existed before the decision to divorce was made, the
parties will necessarily have to overcome a significant number
of them to attain the goal. This will require courage on the
part of the spouses because anger, fear and resentment will
inevitably surface during the four-way sessions. It is the job
of the attorneys to provide the spouses a safe environment in
which to air all of these emotions while at the same time preventing
the spouses from slipping into old, comfortable, but usually
counter-productive, communication habits. Collaborative lawyers
are trained to use open-ended questions which can instantaneously
refocus the parties from dwelling on past hurts back to expressing
their views and concerns about the future. During the several
four-way sessions where these techniques are used, the parties
begin to pick up skills which they take with them into the post-divorce
family structure.
3. “Ac-cen-tu-ates the Positive, E-lim-I-nates the
Negative, and Doesn’t Mess With Mr. In-Be-tween”
One of the points highlighted in the discourse on litigation
above was the impact upon each party of dwelling upon the past
and focusing on the negative behaviors and traits of the opposing
party throughout the divorce process. Litigants rarely overcome
the impact of participating in this backward-looking and exaggerating
process or being the recipient of its focus. Because this technique
is actively and forcefully discouraged by the collaboratively
trained attorneys, the parties never get very far down this
slippery slop to emotional disaster before it is curtailed.
This is not to say that a collaborative divorce is not painful
or that there is no emotional aftermath. But, because the parties
are required to conduct themselves in a dignified and respectful
manner even during moments of high tension and because they
have the assistance of their collaboratively trained attorneys
to enforce the rules of behavior during these emotionally charged
periods, the parties do not have to contend, in addition to
the pain occasioned by the loss of the relationship, with post-divorce
embarrassment of having engaged in deplorable, disrespectful
conduct or of being its recipient. There is much to be said
for leaving any bad situation with one’s head held high
and the sure belief that one was treated fairly and with respect.
Because the attorneys are required to work together to identify
the emotional traps set by the party’s old communication
style and help the spouses avoid them during negotiation, each
spouse’s energy is preserved for resolution of important
future issues rather than dissipated in tautological (cat-chasing-the-tail)
arguments and baseless or hopelessly distorted and exaggerated
accusations hurled in the heat of passion.
2. Post-Divorce Family Integrity Having avoided the
financial drain of litigation, which in its own right tends
to raise the fear level of litigants, having possibly been exposed
to better methods of communication with the now-former spouse
and having avoided the great “Negative Abyss” of
trial, the parties and their children have a more positive attitude
toward the construction of a post-divorce family and their place
in it. This is, obviously, critical where there are children.
1. ADHERENCE TO AGREEMENTS And the Number One biggest
advantage of the Collaborative Law process is that people are
far more likely to adhere to an agreement which they had a personal
role in building than one imposed upon them by a Judge, Jury
or Mediator. Having been treated with respect during the course
of the negotiation and having left the process with a sense
of personal dignity and self-respect (and, maybe, even some
new-found respect for or understanding of the other party),
each party is far more likely to personally “own”
the agreement and behave toward the agreement with a high degree
of integrity.
CONCLUSION
As an attorney who has been a litigator for sixteen years, I can
participate in the emotional and financial carnage of trial preparation
and trial if my client so desires. But, where two people have a
strong desire to avoid that carnage, I have now embraced the philosophy
and taken the training required to offer them a less painful alternative.
I urge couples to strongly consider this possibility.
Author:
JENNIFER A. BROUSSARD, P.C.
2425 West Loop South, Suite 200
Houston, Texas 77027
Phone: 713-840-9017
Fax : 713-623-4017
Email: jabrou@swbell.net
