Family Law and the Collaborative Process
By Jenny L. Womack

Whether you have heard of collaborative law or not, it is certainly changing the practice of family law in Texas. In 2000, some of the top family lawyers in the state got together and decided litigation was not an effective way of handling family law disputes. These lawyers began looking for an alternative and they found collaborative family law. After attending a training session with Pauline Tessler, a well-known collaborative family lawyer from California, and Stu Webb, who is known as the father of collaborative family law, these attorneys brought the collaborative law concept back home; and thus began the collaborative law movement in Texas.

Collaborative law began to spread across the state quickly as more and more attorneys recognized the benefits for their clients. In fact, the collaborative process was so popular and well-supported that just one year after that initial training, the Texas Legislature enacted statutes providing for the use of the collaborative process in family law cases, making Texas the first state in the United States to have such statutes. Since 2001, Texas has become a leader in the national and international collaborative law movement.

So what exactly is collaborative law? In a nutshell, collaborative law is a confidential process alternative to litigation in which the parties and their respective attorneys commit to work together to resolve the parties’ differences in an open, honest and transparent manner, without resorting to the courthouse. From its initial assumptions, the collaborative law process differs from litigation. The structured process of collaborative law assumes that the parties will resolve their differences; whereas traditional litigation begins with the assumption they will not. However, if a resolution absolutely cannot be reached through the collaborative process (i.e. an “impasse” occurs), then the parties may terminate the process and move forward in the traditional litigation model. In such cases, the attorneys must withdraw as they cannot represent the client in litigation after representing the client collaboratively. This requirement is both contractual, as a result of the participation agreement signed at the outset of the case, and statutory under the Texas Family Code. Of course, the requirement also provides additional incentive to work hard to avoid an impasse and reach a resolution.

Another advantage over litigation, and one clients truly appreciate, is that the collaborative process gives the parties control over the outcome of their case. While the attorneys shepherd the process using a variety of “tools,” like interest-based negotiation, to help both parties reach the best possible outcome under the circumstances, ultimately, the specific outcome results from the parties’ themselves. The process focuses on meeting the clients’ interests and needs rather than on defending positions. As an attorney, another benefit of the collaborative process is that you can be a zealous advocate for your client, but focus on problem-solving rather than adversarial tactics.

The collaborative process is a creative and often “customized” process. Through this method, clients are able to be more creative in fashioning an individualized outcome that is more suitable to their family’s needs. Furthermore, as a non-adversarial process, collaborative law allows the parties to maintain privacy, preserve their dignity and retain the possibility of a post-suit relationship (e.g., a positive and effective co-parenting relationship after a divorce).

Attorneys in the collaborative law process face an essential paradigm shift away from the traditional court/attorney-directed process with its positional bargaining to a more client-controlled process using interest based negotiation skills to reach a maximized outcome for both parties. Recognizing that divorce (or any family law case) involves emotional and financial issues as well as legal issues, the Texas collaborative process is also experiencing a second paradigm shift to a more interdisciplinary approach. The “Texas Team Model” approach has become more and more common, especially in Dallas. Under this team approach, a neutral mental health professional and a neutral financial professional, whose roles are to help facilitate the process, are involved from the very beginning and even attend the first joint session. In the “lawyer only” model, allied professionals were sometimes brought in as problems arose, but those of us used the team model (with the allied professionals involved from the start) have found it to be a much more effective and efficient process. By involving these neutral professionals, you have two voices that are not aligned with any one “side” and experts who can more efficiently handle the emotional and financial aspects of the case, allowing the attorneys to focus on the legal aspects.

Procedurally, the process consists of a series of joint sessions involving the clients, with the team or the attorneys (in a lawyer only approach). Through these joint sessions, the parties, with the help of their attorneys and any allied professionals, work through the myriad of issues the specific case involves. The initial joint session focuses on the process itself (the theory and the procedure), with future sessions on the substantive case matters following previously agreed upon agendas. In the team model, the clients, together or individually, may have “off line” meetings with either or both of the allied neutrals. This is yet another example of the efficiency aspect of the process. By working with the neutrals outside of the joint sessions, the clients can address issues that are primarily non-legal in nature more effectively and certainly less expensively than in a joint session where they are paying for the two attorneys’ time as well as the neutral’s time. The number of joint sessions and “off line” meetings vary on a case-by-case basis, with some taking only two joint sessions and others taking several joint sessions with “off line” meetings interspersed. As an interest and needs based process, a collaborative case proceeds at the pace set by the parties’ needs and interests. Some cases progress very quickly, while others may take up to two years. By statute, the court cannot dismiss a collaborative case for two years so long as the court is properly notified of the choice to use the process and receives the appropriate status reports.

Of course, the clients always want to know what this wonderful process will cost. Given the non-adversarial nature of collaborative law, the process results in lower emotional and financial costs. Financially, 100% of the lawyer’s time and resources are spent working toward settlement in the collaborative law process, as opposed to litigation, where much of the attorney’s time and client’s money is spent in trial strategy and preparation, even though most cases settle. Furthermore, by using the allied neutral professionals, much of the emotional and financial issues can be resolved much more efficiently and with corresponding cost-savings. So while the collaborative process is not inexpensive, it is certainly more cost-efficient than litigation.

As many Texas families and their lawyers have discovered, the collaborative process has numerous benefits. In fact, many agree that collaborative law is the only way to go. Furthermore, the collaborative process is spreading. Many non-family lawyers are beginning to implement the process in other practice areas and seeing the benefits. If you would like to learn more about collaborative law, please see the Collaborative Law Institute of Texas’ website (www.collablawtexas.org).

© 2006