This post is from Norma Levine Trusch, a Houston-based lawyer and Collaborative Law Institute of Texas Board Member.
Next week, at the Advanced Family Law Course in San Antonio, Don Royall, Harry Tindall and I will be speaking on “Other Non-Adversarial Approaches to Family Law Cases.” The subject arose from a discussion I had with these two old friends about what do to when the attorney on the other side (or their client) doesn’t want to sign a collaborative law participation agreement (our preference in most family law matters). Our conclusion was that there is more than one way to skin a cat.
The cat in question was our desire to help our clients get through the divorce process with the least amount of conflict and stress, and to protect their children from the inevitable negative fallout of a battle between their parents. One of the first encouraging signs the three of us had noted was the willingness of many of our opposing counsel, since the advent of collaborative law, to consider working more cooperatively to find solutions for their clients. Being committed to the collaborative approach, we congratulated ourselves and the “collaborative movement” for infecting the family law community with a new spirit of reasonableness. Whether or not the credit is merited, there does seem to be more openness within the family law community to considering alternative, non-adversarial approaches to reaching agreements in domestic matters.
In our discussions, we recalled that several years ago, Don had floated the idea to this same gathering of attorneys of an extrajudicial approach to discovery that required attorneys to meet and come to their own scheduling orders and stipulations very early in the pendency of a case, thus eliminating the pressure and conflict over the necessary job, for both attorneys, of information gathering and preparing for negotiation or trial. A survey he took of family lawyers across the state in 2006 found that 65% would be willing to enter into a Statement of Principles with the other lawyer that said “We agree to work together in the discovery phase of this case to exchange all relevant information concerning the nature, extent, value of, and all developments affecting the parties’ assets, liabilities, and income, in the least time consuming and most cost effective manner, and then to make good faith efforts to objectively evaluate and settle the case in an expeditious manner, and that failing afford each side a fair opportunity to present its’ case on the merits without resort to procedural or evidentiary objection for tactical advantage, unless there arises a genuine concern about the authenticity of the information being offered into evidence, or genuine surprise concerning it.”
In our discussions, we noted that retired Justice Frank Evans has come up with an innovative approach he calls Managed Dispute Resolution which we will be discussing in our presentation, along with Harry Tindall’s variation on a cooperative law approach that he is still in the process of refining. All of this, along with mediation and arbitration, falls under what Don says is part of a trend towards Private Ordering, which will also be a part of our discussion. I can’t wait to hear the feedback from the participants. I sure we’ll pick up even more ideas about non-adversarial approaches to helping families going through family law issues.