At the beginning of the collaborative process all parties must sign an agreement that they will not go to court. As a result, if the process does not work, the attorneys must withdraw, and the parties must select new attorneys.
In Dallas and Austin collaborative law is well-known as an option that works well for some couples seeking a divorce. In Houston, collaborative divorce is gradually becoming better known. What exactly is collaborative divorce and when should you refer someone to a family lawyer who offers collaborative law as an option?
Unfortunately, it is difficult to draw up an Excel spreadsheet and simply lay out characteristics of a divorce situation that indicate automatically that one couple should go to mediation, another to arbitration, a third to collaborative law, and a fourth couple to litigation. An attorney must consult with each potential client and discuss the individual case in depth in order to identify the best possible option—though, of course, the other party may have different ideas as to what process is most appropriate.
The simplest alternative is what is called the “kitchen table” divorce, which can work when each party is familiar with the elements of the couple’s estate and there are no minor children. The two parties sit down and figure out who gets what and an attorney draws up a final agreement. This approach to divorce is by far the least expensive, but it is not suited to dealing with complex or sizable assets and is prone to abuse if one party can be manipulated or coerced by the other. The “kitchen table” settlement may also miss critical issues that should be discussed with an attorney.
Mediation takes place between the two parties and a neutral mediator who will guide the discussion but will not make decisions for the couple. They may or may not choose to be represented by counsel and may bring in experts as needed to advise on financial or other issues. Mediation can take place at any stage of a case.
Arbitration allows the parties with counsel to select a neutral third person to rule in the case, much as a judge does, but outside the judicial arena. The parties must pay the arbitrator. Arbitration can be binding or non-binding.
Both parties must agree to use the collaborative law process. In collaborative law, each party has an attorney who will guide the process in four-way meetings which allow the attorneys to maintain equilibrium between the parties. This is especially helpful if one spouse tends to be more talkative or aggressive and the other is more subdued, more easily intimidated or simply does not have as much knowledge or experience dealing with financial or other matters.
A variety of neutral experts can be brought in as needed—not just financial experts but perhaps a mental health expert, an expert in a child’s special needs, or even a communications expert. The attorneys will choose well-known, knowledgeable and trusted people to offer advice—only one expert in each relevant discipline, as needed. There will be no “dueling experts” representing only one side or the other, as often happens in formal litigation.
Both mediation and collaborative law are more informal, efficient and flexible than going to court and generally can be less expensive. In addition, both approaches are private: marital issues are not aired in public as in court. However, neither mediation nor collaborative law can work unless there is a baseline of trust between the two parties that all information and relevant documents will be disclosed. Parties who agree to use one of these methods of reaching a reasonable divorce agreement cannot be simultaneously hiding secret bank accounts in the Cayman Islands or cryptocurrency on the dark web.
Even addiction can be dealt with in the divorce discussions if those struggling with addiction are willing to admit that they have a problem. These approaches are not likely to be suitable, however, if one party has been abused by the other.
At the beginning of the collaborative process all parties must sign an agreement that they will not go to court. As a result, if the process does not work, the attorneys must withdraw, and the parties must select new attorneys. Attorneys involved in mediation can theoretically take the case to court if that becomes necessary, although not every attorney who focuses on mediation is also an experienced litigator.
In Texas, family court judges facing crowded dockets demand that parties at least attempt mediation before they are allowed to litigate. But litigation may be the only refuge if one party refuses to compromise on any issue and will not comply with agreements or orders. Litigation tends to be expensive and drawn out over a long period of time, which can exhaust a family’s resources. The intensity of litigation may also make joint parenting of children more difficult.
All methods of conflict resolution should be considered before a couple launches into the challenging process of divorce. When parties, though divorcing, are willing to be reasonable, listen to each other, and participate in finding solutions that are acceptable to both, collaborative law can be an excellent solution. Most commonly, well-intentioned spouses can resolve the outstanding issues in the divorce in no more than three to five sessions with skilled attorneys and experts and then be ready to move on to the next chapter in their lives.
This article was originally published in the online edition of Texas Lawyer on May 25, 2022.