A growing method of resolving family law disputes is collaborative law. This option allows the parties to sit down with neutrals and work together to come to a mutually beneficial agreement. This does not mean that everyone gets along; it means that everyone wants to work together to get the best outcome possible and walk away without disparaging the other person in Court. People choose collaborative law for divorce, custody (conservatorship), and child support issues for a number of reasons - from privacy to co-parenting for the children. This process is not for everyone, but it can be a great option for couples dissolving their marriage or working to resolve child-related issues.
Many like to compare collaborative to other types of resolution through this comparison. Bob and Jill are fighting about an apple. If they go to court, the judge will look at what is available and divide the apple, and most likely, neither will get the entire apple and will not be happy. If they go with the collaborative route, they can discuss why they want the apple. Through collaborative meetings, they discover that Jill wants the rind to bake, and Bob wants the apple to eat. Therefore, in collaborative, they can both get "the entire" apple and get their needs met through this process.
Below is an outline of different ways couples can choose to handle their case. Each option has its own pros and cons, and you should discuss these with your attorney before moving forward with any option.
This settlement method is simple. The couple sits down “at the kitchen table ” and works out an arrangement that satisfies each of them. The agreement can be taken to a lawyer to be put into legal form, or used to complete do-it-yourself forms. Unlike some other settlement options, this method of reaching agreements can produce inexpensive, quick, private agreements for couples who do not have children or substantial assets. Without the benefit of legal advice, however, you may not know if you are giving up valuable rights. It is also easy to “re-invent the wheel,” or make mistakes that someone with family-law experience could help you avoid. People often find, upon taking the agreement to a lawyer, that questions will arise that may cause one or both spouses to change their agreement. If the husband and wife do not have equal information and equal power in the relationship, one person might not get his or her needs met.
Bookstores and online resources sell forms that can be used to handle a divorce (or child agreements) without attorneys. Forms may also be available at local law libraries. Simple forms for people without children or substantial property are also available online without charge. Divorce kits or forms generally provide a checklist approach to property and child-related issues, so users are not left completely in the dark about their options. But not all forms are equal; some can create more problems than they solve. When children and real estate or other major assets are involved, the forms may not be detailed enough to do what you are trying to accomplish. Further, checklists cannot inform you of your rights and leave little room for creativity. If the couple does not have equal information and equal power in the relationship, one person might not get his or her needs met.
Mediation is assisted settlement negotiation. Mediators don’t take sides, and are used for the sole purpose of trying to help people reach a settlement. Many couples find working with a skilled mediator at the start to be a helpful and satisfying way to settle the issues. A mediator is a neutral party, not necessarily an attorney, who can help the couple resolve all of the questions that a court wants addressed in the final divorce decree. Even if the mediator is an attorney, he or she cannot give the parties legal advice. Often couples who choose this route to resolution will hire an attorney or attorneys to give them legal guidance before or during the mediation process, which usually is conducted in a series of joint meetings with the mediator.
In the Collaborative Law model, the couple and their lawyers agree in advance that no one will take any contested issue to court. The “Collaborative Team,” which often includes mental health and financial professionals, focuses its attention on finding ways to restructure the family so that everyone involved gets their needs met to the greatest extent possible. The lawyers on this team should be family lawyers with experience and training in Collaborative Law. If a husband and wife decide to follow the Collaborative Law road to divorce they must sign an agreement that they will share all information available to them about their property and children. They agree to work together with their attorneys and other professionals to come to a mutually arrived at solution that meets both of their most important goals and concerns. In the event that they are not able to settle their cases using the Collaborative Law model, litigation attorneys can still take the case to court, but the Collaborative Law Team cannot continue to represent them.
Collaborative Law is conducted in a series of joint meetings in which the parties and their lawyers, and possibly other professionals, sit down together in the same room. Under Texas law, everything that is said in theses meetings is confidential and can never be brought up in court. Participation in the process is voluntary, and can never be ordered by a court. It can be used for divorce, custody (conservatorship), or child support issues. Either party may choose to end the process at will, and both parties must agree to any resolution that is reached.
In litigation, decisions are made for the parties by a judge, or sometimes a jury. There are very strict rules about what information may be presented to the decision-maker. Litigation does provide resolution for people who cannot find a way to settle their differences any other way. The court system is the only way to “force” a reluctant party to deal with family law issues. Litigation, however, is a process that often focuses on the negative aspects of divorce and other family law matters. In comparison to some other divorce options, it causes people to focus on how they are “right” and the other is “wrong,” when they really may just have different ideas about how their lives should look after the orders are signed. Litigation can be expensive and destructive to relationships. Even though most cases settle before they ever go to trial, the process of preparing to go to trial, if necessary, can cause relationship damage that is difficult – if not impossible – to repair. The costs of litigation can use up funds that could be put to better use, like children’s college or litigants’ post-divorce financial autonomy.
Mediation is generally part of the litigation process. In most courts, the parties are required to try to settle their case through mediation before they go to court for trial. The mediators are neutral and can offer clients a different unbiased perspective. Also, having both clients, both lawyers and a mediator in the same place at the same time with everyone’s attention focused on getting a settlement can often create a positive environment for making agreements. But mediation often takes place just before a case is scheduled to go to trial, after the parties have already spent money, time and emotional energy fighting. Mediation under these circumstances can sometimes feel coercive to clients, who may never have discussed the realities of their situation with their attorneys.
Although seldom used, arbitration is another road to resolution that is available in a divorce or child disputes, if both parties agree to utilize the process. An arbitrator is a hired judge who hears the evidence that would otherwise be presented in a trial, and the arbitrator’s decision can be binding or non-binding, depending on the agreements of the parties. Like Collaborative Law, an agreement to arbitrate in a family law matter must be in writing. An arbitrator can be hired to decide all of the issues in a divorce or just one or more. Unlike a trial to a Court, the hearings before the arbitrator can be heard at times convenient to the parties and their attorneys. If everyone has agreed that the arbitrator’s award is binding, the Court must enter a judgment that reflects the arbitrator’s decision. A trial to an arbitrator may be informal, or may follow all of the rules of evidence and discovery that are required in a trial to the Court, depending on the signed agreements. An arbitration can be heard before one judge or three judges, depending on the signed agreements. Either way, the arbitrator must be paid for his or her time, which could add up to the same cost as litigation.
Copyright © Law Office of Jodi McShan, PLLC. All rights reserved.