According to the statute, we get into collaborative by signing a participation agreement. If you’re not working under the family law statute, you’re just signing a contract to enroll you into the process in a case such as a probate matter or a civil litigation dispute. The statute says collaborative means you have dedicated settlement counsel and must have two lawyers. We sign a participation agreement that says the collaborative lawyers will not be litigation counsel if this opts out of collaborative. By requirement of the statue, they will have to change lawyers and it cannot be a lawyer in the same firm. This exists in the collaborative process because we typically meet and ask the clients to state their true interests, concerns, goals, and to be honest.
We should not be able to use that against them in a litigation setting later. As an example, let’s say I represent Susie and she’s getting a divorce from Joe Bob. In the collaborative setting we meet with Joe Bob, Susie, myself, Jo Bob’s lawyer, and typically a neutral mental health professional and a neutral financial professional. We meet either in person or on zoom and we’re going to ask Susie and Joe Bob to tell us their goals.
Then at a future meeting as we develop possible solutions for their case, we’re going to ask them to tell us what they like and don’t like about various options. It’s important that this be a safe space and that I not be allowed to use that against Joe Bob later. Like mediation, it’s highly confidential and nothing we say can be repeated in court. However, in mediation we are typically not face to face.
The collaborative statute also says that there is no formal discovery and instead we provide full transparency and full disclosure of any information. The idea of no discovery has always been attractive, more so with the new automatic disclosure rules that went into place January 1st in Texas.
In civil cases where there is no statute, this is all included in the contract.
The neutral mental health professional commonly on the collaborative team serves as the leader of the team and of the meetings. They facilitate all our meetings and carry us through our agenda. They are there to help us manage the emotion that gets in the way. They are also the leader of the conversation regarding the parenting time schedule if children are involved.
We also have a neutral financial professional. They lead the conversations about money, gather all the financial information, and build a spreadsheet that we all use. It may sound expensive, but what’s happening is fee shifting from the lawyers to these neutral professionals. When we don’t have a neutral financial professional the lawyers are individually gathering financial information and building a spreadsheet. In collaborative, I let the financial neutral do that and so does the other lawyer. Typically, the financial professional is a lower hourly rate than the lawyers and now only one person is doing the work. Fee shifting happens with the mental health professional when they meet with Susie and Joe Bob without the lawyers present. They put together most of the parenting time schedule with the lawyers advising in the background and participating more fully if they hit a roadblock. This neutral is typically also at a lower hourly rate than either of the lawyers.
At our State Bar collaborative conferences, we occasionally have panels of live clients that have participated in the collaborative process, and they tell us multiple different reasons that people are attracted to collaborative; a surprising one being privacy. I can understand that concern if someone is famous, but most of my clients are not famous. Even so they want their personal business kept private. Both professionals and clients are attracted to collaborative for different reasons. Being creative in our solutions is something I and most clients love, being only limited by our imaginations.