Collaborative Law Compared to Mediation: Which is Better?

Mediation.  Both Collaborative Law and mediation are dispute resolution processes.  Mediation is commonly used in divorce litigation and in other contexts.  I am a mediator and I strongly believe in the value of mediation.  It is great for settling litigated cases of all types.  Almost every divorce case, and most other family law cases in Tarrant County go to mediation before the Judge will consider letting them go to trial, and almost all will settle in mediation.

Collaboration.  Collaborative Law is a great process for settling divorces, but it approaches settlement entirely differently.  While mediation occurs late in the process, often just before a trial date, Collaboration begins at the start of the case.  There are a series of relatively short meetings in Collaborative, rather than one big day of mediation.

There are some other significant differences between the two processes.  Here are some to consider.

1.  Mediation relies on a sole mediation usually, while Collaborative Law utilizes a team approach with a neutral therapist and a neutral financial advisor.  In addition, in Collaborative cases, the attorneys commit to a different role, working together to make sure no one is taken advantage of, than they follow in mediation.

2.  There are essentially different goals.  In mediation, the bargaining often involves staking out extreme starting positions so the parties can move to an acceptable middle ground.  In Collaborative, the parties explain their goals and needs up front and then both sides commit to helping the parties each meet their goals.

3.  In Collaborative, the parties freely share information; in mediation, the parties generally get their information through Discovery and often use motions and hearings to get information.

4.  In Collaborative Law, the parties agree at the beginning to not take advantage of mistakes.  In Mediation, that's not the case.  The parties have to look out for themselves and be as careful as they can be. Mistakes happen in litigation and mediation and it's too bad.

5.  In Collaborative, single, neutral experts are routinely used.  That only happens occasionally in litigation and mediation. The parties work together with their experts in Collaborative.

What all of this means is that Collaborative Law is a safer, more flexible process that is tuned to the needs of both parties.  If you are using litigation for a divorce, get to mediation as soon as possible so you can get the case settled.  If you are just starting on your divorce, look seriously at using Collaborative Law for a better process and a better result.

How to Avoid Financial Mistakes in Divorce

If you are facing a divorce and are worried about how you will come out financially, you are not alone!  Most people who think about their future want to make sure that the divorce process works to protect them from being taken advantage of and from missing out on something they are entitled to have.

Karen Covy has an excellent blog and website  that discuss various aspects of getting divorced. In a recent post, she wrote about "10 Financial Mistakes in Divorce You Don't Want to Make".  She listed 10 important issues and it turns out that  Collaborative Law is an effective process to address each of them.  Here are her issues:


1.  "Not taking the time to do an accurate post-divorce budget BEFORE you settle!"  We normally use a neutral financial professional for both parties and one of the standard steps is to prepare a budget for each party for after the divorce.  That helps everyone address the needs of each party as we work out a financial agreement.

2.  "Not insisting on getting all of your (and your spouse's) financial documents."  In Collaborative cases, we start with getting the current statements for all financial accounts and then get any other prior statements that are really needed.  We don't request statements just to request them.

3.  "Not getting assets valued."  If an asset, like a house, business or painting (or anything else) needs to be valued, we get a neutral expert for both parties to do the valuation.  If it doesn't matter or if the parties agree on the value, we don't spend the money to get a valuation.

4.  "Not looking at (and understanding!) all of your financial documents."  One of the great benefits of Collaborative Law is having the neutral financial professional who gathers, studies and organizes the financial records.  Either party can discuss the finances and get help understanding them.  The finances are also discussed extensively in joint sessions.

5.  "Relying on your lawyer to do everything."  In Collaborative cases, we make sure the parties are very active and participating in the preparation and in the discussions at joint meetings.  Most often, we have the parties meeting, without the lawyers present, with the mental health professional on children's issues and with the financial professional on financial issues.  There is a lot of work done without the lawyers being present.

6.  "Not understanding how taxes will affect your support and settlement."  We also discuss taxes and can arrange for a neutral tax expert if specialized knowledge is necessary. When we discuss alimony and property division, taxes are always a consideration.

7."Forgetting about the long term."  Collaborative professionals are very aware of the long-term implications of the negotiations and we can do projections into the financial future.  Considerations for retirement income are always very important.

8.  "Not thinking about insurance."  We look at insurance as an asset and also as a safeguard.  Insurance can be considered in the context of a long-term plan, but it's also the back-up for financial obligations that may continue after the death of a party.

9.  "Sacrificing your own financial security for your children." We try to be as realistic as possible in working out agreements.  There are many different ways to pay for the children's expenses and Collaborative Law provides more flexibility than Litigation does.  It is possible to protect your own financial needs while making sure the kids are provided for.

10. "Making settlement decisions out of exhaustion."  In Collaborative cases, we have a series of meetings, usually an hour and a half to two hours long.  In mediation in Litigation cases, the sessions are usually a half day or a whole day, which can be exhausting.  In court, you are likely to spend a half day to several days or a week.  Collaborative Law provides a safe, measured process without the pressure to get everything done at once.

Bottom Line:  If you have serious financial concerns, be sure to investigate Collaborative Law.  Talk with an experienced Collaborative lawyer.  You should get a second opinion if an attorney mentions Collaborative Law on a web site, but then spends the consultation time trying to talk you out of using the process.  With a lawyer like that, be sure to ask how many Collaborative cases the attorney has actually handled.  Before you decide, talk with a real Collaborative attorney.

How to Prepare for a Peaceful Divorce

Often, people become hurt and angry when it becomes clear they are facing a divorce.  In most cases, the divorce should not be a surprise, but sometimes it is.  While some people can overcome their anger at the situation and their spouse, others can't.  Attorneys will tell the parties that if one person wants the divorce, it will happen eventually.  Many times angry people seem determined to make life difficult for themselves and their spouse as they go through a divorce.

On the other hand, there is a large number of people who have had time to process the emotional issues of their divorce and are more interested in having a peaceful divorce.

For the people wanting to have a peaceful and civilized divorce, here are some suggestions to follow:

1.  Try Collaborative Law. Ideally, if there are issues to be resolved, the parties should use Collaborative Law.  I have written many other posts in this blog and my Texas Collaborative Law blog about how Collaborative Law works and the advantages of it. If there's any way to get your spouse to agree to use Collaborative Law, you will both benefit.

2.  Think about, identify and define your goals.  Figure out what you would like to end up with after the divorce is finished. What would you want your life to look like? There's no automatic plan in the Texas Family Code for dividing property.  Even issues around the children have room for some variations. You will be much happier at the end if you are constantly thinking about your goals, needs and interests while you work on finding or creating solutions.

3.  Be realistic.  Don't ask for more than is even possible.  Consider that your spouse has needs also, even if you are angry at him or her.  If you are realistic and reasonable, you will have a greater chance of reaching agreement and avoiding an expensive battle in court.

4.  Get professional help.  It's no admission of weakness to talk with a counselor and get help with the stresses and emotions of a divorce.  It can make your life easier if you will get counseling and follow through with their advice.

5.  Pause and think before you speak.  You will have many occasions to speak to and about your spouse.  What you say can result in anger, hurt feelings and retaliation.  Holding your tongue and not responding to provocation can pay off in the end.  You don't need to escalate things.

6.  Avoid pushing your spouse's buttons.  You know what you can say and do that will trigger anger in your spouse.  You don't need to strike back like that.  Everything can escalate quickly and that's not good for either of you.

7.  Look for common ground.  It may seem hard, but you can find things you can agree on.  If you start with a few small agreements, it makes it easier to agree on bigger issues.  That's true for both sides.

8.  Gather and share information.  You can try to withhold information, but it will normally come out eventually.  Courts are geared up to enforce the production of information.  They aren't foolproof, but they can sure eat up a lot of cash as the attorneys fight over documents.  Save yourself time and money by being cooperative. It will also help generate goodwill.

9.  Think outside the box.  Don't limit yourself to mechanical, by-the-guidelines solutions.  Be open to completely new ways to work things out.  Get whatever help you need and be creative. A solution doesn't mean someone has to lose.

10. Leave your ego out of the picture.  You don't have to "win".  You can decide what would satisfy you and your needs.  There are always different ways of looking at things.  If your spouse feels like he/she "won" and you are satisfied with the result, that's great!

If you follow these tips, especially the one about choosing Collaborative Law, you will have a peaceful divorce. By the way, a peaceful divorce will be a lot cheaper than a hotly-contested one!

Choosing an Attorney: Should You Get a 2nd Opinion?

If, after talking with a prospective attorney, you feel uncomfortable with the attorney, you should definitely go see another lawyer before you hire one to represent you in a family law matter.  

If you are considering using Collaborative Law to help resolve your family law issue, you need to have a trained Collaborative lawyer.  If you visit with an attorney who says he or she does Collaborative Law, and that attorney says you shouldn't use the process, you should get a second opinion.

You should start with the understanding that Collaborative Law won't work for everyone or in every case.  There may be legitimate reasons why it might be inappropriate, such as someone having serious emotional issues, one or both parties having unreasonable expectations or if one of the parties is untrustworthy, for example.

Sometimes, unfortunately, an attorney  may claim to do Collaborative work just to draw in business, and then the attorney talks the client out of using the process.  Trust your gut on this.  If something doesn't quite feel right, go talk to another Collaborative attorney and get his or her opinion about the suitability of your case for Collaborative.

Warning Sign:  There's a concern if the attorney tries to talk you out of using Collaborative Law, especially if  you and your spouse have investigated it and jointly decided to give it a try.  It's really suspicious if your spouse has already hired a Collaborative attorney.

What Can You Do?  Ask some questions.

1.  Ask if the attorney is a member of the Collaborative Law Institute of Texas, the International Academy of Collaborative Professionals and/or a local practice group.  An active Collaborative lawyer will probably be in at least two of the organizations.

2.  Ask if the attorney has attended at least a 2-day basic training.  If he or she hasn't, they aren't trained properly and probably aren't able to work in the process.

3.  If the attorney has been to a 2-day training, ask when he/she last attended a Collaborative training.  You want someone who stays current.

4.  Ask how many Collaborative Law cases the attorney has handled.  If none, one or two, you should talk with someone who is more experienced.

Caveat:  Don't assume that an attorney who wants to use Collaborative Law in a case, but who has very few Collaborative cases completed, would be unable to competently represent you.  That's not necessarily the case.  Enthusiasm, current knowledge and the cooperation of the other professionals in the case will likely lead to a good result anyway.

Bottom Line:  Check qualifications, go with your gut feeling.

"What Would You Do?"

Clients often ask me to tell them what I would do if I were in their place when we are at a crossroads in a case. That's an understandable question when facing a difficult decision, but I don't like to try to answer it because: (1) it's really not my case, (2) it's not my life being affected and (3) I can't fully put myself in my client's shoes. Instead, I try asking questions that help my client consider different points of view and better understand the consequences of different courses of action.

A recent article in the Huffington Post online answered the question, "What do Divorce Lawyers do in Their Own Divorces?" It's a good article and I agree with the analysis and conclusions. The answer is that divorce lawyers, who know the most about the system, try to stay out of court. They negotiate and try to settle their cases without court appearances, or at least without going to trial. Just about every divorce attorney or judge I know who has been divorced has worked very hard to keep their case out of court. Here are some reasons why.

1. Going to court often wastes time, energy and money. Courts don't run on time and are often very slow. It is very common for cases to get reset and it drives clients crazy -- understandably so. It's stressful getting ready and appearing at court. And of course, it's very expensive: waiting around, slow hearings, breaks in the hearings and resets all add to the bill. On many levels, going to court is wasteful.

2. Court is never like the movies of TV. Whether you like Perry Mason, The Practice or Boston Legal, they don't portray what you will experience.

3. Attorneys know the consequences to fighting. Some attorneys will encourage fighting because they sense that's what their client wants to do, and sometimes there's no choice if the other side chooses that approach. Still, attorneys know that fighting is ultimately destructive and expensive. If they can avoid it for themselves, they will.

4. There's really no winner if you go to court. Sure, you will probably eventually get a decision from the judge, but you very likely won't be satisfied with a lot of it. Judges tend to spread out the pain and have something good and something bad for both parties. Judges rarely see a case where only one party is at fault. Almost always, both parties have done bad or dumb things that can tick off the judge. You can't control the decision-making when you turn it all over to the judge. Judges must follow legal and evidentiary rules that can be frustrating for the parties who expect that they will win because they will just tell the judge "the truth". That doesn't really happen.

5. You usually don't get your day in court. Over 90% of cases will settle without a trial. That means you don't get to testify and have the judge praise you for your courage and honesty. Even if you go to court, you never really get to say everything you would like to say. Most people leave the courthouse pretty upset about something in the judge's decision or how a hearing was handled.

So, what would I do?

• Listen to your lawyer when he/she tells you to consider a settlement offer. Make a settlement your main goal.

• Consider using Collaborative Law. It is a process that leads to peaceful, rational agreements between parties in a safe environment. Check out my Texas Collaborative Law Blog for more information.
  

• You can also consider doing mediation early and not waiting to the end of the process, just before a trial, which is a common scenario. If you and your spouse start off preparing for mediation, it will be more efficient and will save money and reduce stress for both of you.
  

Satisfying Both Parties -- Collaborative Law

An excellent article by Teresa McUsic appeared in the venerable Fort Worth Star-Telegram today discussing Collaborative divorce. In particular, the writer referenced a recently-published book by Scott Clarke, Melinda Eitzen and Vicki James. The book called, Divorce: The Collaborative Way, is available through Amazon and various book stores.

The three authors are from the North Texas area. Scott is a financial planner in Colleyville, Melinda is a Dallas attorney and Vicki is a therapist in Dallas, although they all practice in multiple counties in North Texas. I have worked with Scott and Vicki and I know Melinda, so I can confirm that they are real authorities on Collaborative Law.

Ms. McUsic discussed various aspects of Collaborative Law with the three co-authors and explained how the three professionals work together as a team in Collaborative cases in Texas. Her article is a great brief introduction to Collaborative Law.

If the article tweaks your interest, you should find the book and read it. With explanations of what the paperwork means, how the process works and the roles of each of the professionals, the book gives you an excellent overview of Collaborative Law. It also contains examples that illustrate how the Collaborative process can be beneficial to both parties in ways that standard litigation can't. The authors make it easy and fast to read, and the book is inexpensive. If you are investigating Collaborative Law and thinking of using it, this would be a great resource for you and your spouse.

Disclaimer: The authors are friends, but I have no financial interest in the book.

5 Tips -- If You Think it Will be Amicable

Many people contact me and say they want to have an amicable divorce or child support or visitation modification agreement. They understand the benefits that come from avoiding the negativity that often accompanies litigation. They don't want unnecessary work done and want to hold down the financial cost. Truth be told, they would probably prefer to have just one attorney represent both parties, but I always explain that can't be done. (It would be a conflict of interest for the attorney and it would violate our disciplinary rules.)

Generally, the best way to have an amicable legal proceeding is to use Collaborative Law. That process keeps the parties out of court, provides the means for thoughtful and creative decision-making and utilizes the tools necessary to accomplish the objectives of the parties. Each party would have his/her own attorney (trained in Collaborative Law), but the attorneys are focused on reaching an agreement that meets the needs of both parties. The attorneys are not concerned with following all the traditional steps of discovery, pretrial motions and hearings, depositions, etc. that are expensive and often are used to just wear down one of the parties. The Collaborative process involves gathering information informally, but using experts to help evaluate it, and then going through a brainstorming process that is effective in developing options and allowing the parties to come to agreements on their best outcomes.

Unfortunately, Collaborative Law isn't always an option. The most common reason, for now, is that one of the attorneys is not trained in Collaborative Law. Sometimes, one of the parties isn't convinced that Collaborative is the way to go. Whatever the reason, the parties in a family law matter sometimes want an amicable process, but don't utilize Collaborative Law. For that situation, I have the following five tips to help them work together peacefully and effectively.

1. Be prepared by gathering needed information. If this is a divorce, make copies of the essential financial records. I don't suggest that you grab and hold all the financial records. That would be taken as a sign of an uncooperative attitude, even if you really intended to share the information. In non-divorce cases, there will be other information needed, such as income and expense records, school records, health records, etc. It will save time later if you gather up the needed information early on.

2. Choose your attorney carefully. You should probably explain what you want to do and make sure your lawyer is comfortable with that approach. Some lawyers insist on following the same game plan for every case, even if you don't want to take certain steps. If you don't feel like the attorney will do what you want done, then talk to other attorneys. There are plenty of good attorneys and you should only hire one who fits your needs.

3. Expect difficulties. Remember that even if both parties say they want an amicable case, there will still be disagreements. There can be amicable disagreements that can be resolved when there are attorneys (and maybe other professionals) who are skilled negotiators. What you want to avoid is working with someone whose answer to conflict is, "If they won't do what we want, we'll just take it to court and let the judge decide." That's not amicable and that's probably not what either party is looking for. There are plenty of ways of resolving difficult questions without going to court, if your attorney is willing to work on it.

4. Be willing to accept helpful suggestions from your attorney. I have had people come in and tell me that they have everything worked out and they just want me to prepare a document for them. I can do that, but I feel compelled to point out problems and potential issues whenever I spot them. Attorneys will make suggestions for slight wording changes that can clarify an order and help avoid confusion and conflict later. Attorneys can sometimes point out potential tax or financial issues and help you save money and avoid problems. Attorneys often know of ways to do things to more easily accomplish what you want done. You should listen to your attorney and be open to considering implementing his/her suggestions.

5. Don't let the attorneys pressure you into using the standard ways of doing things unless you completely agree. This is the corollary to point #4. You need to listen to the attorneys, but sometimes you should disagree. Doing something just because it's the standard way of doing something is not good enough. The attorney should be able to explain better reasons or benefits for any proposed changes.

If you follow these five tips, you should be able to work out solutions amicably in family law matters. Keep in mind the possibility of using Collaborative Law to get the best results.

Will Collaborative Law Work for Tough Cases?

Some attorneys and some potential clients have the mistaken idea that Collaborative Law is appropriate only for cases where everyone is nice and they are already pretty much in agreement.

The "nice" cases are usually, but not always, easy and rewarding to work on, but Collaborative Law is actually set up to handle more complex and difficult cases. Collaborative Law sometimes seems like overkill when everyone starts out pretty much in agreement, although problems often arise even in those cases.

Where the process is really appropriate and beneficial is the cases where two good people each have similar goals and haven't been able to come to an agreement. The process also is helpful where there may be some aggravating factors, such as an affair, difficult financial circumstances or special needs for the children, but the parties value the maintenance of an on-going relationship, typically for the benefit of children. Parties can make a choice between focusing on their future relationship or rehashing old arguments and reliving bad old times.

Tough cases are well served by Collaborative Law because neutral experts are used and because of the structure of the process that is followed from setting goals to reaching an agreement. For those who look forward, the neutral experts help them overcome past problems and learn new skills to communicate and deal with each other. In addition, most people prefer to deal with their personal problems in privacy, which is how Collaborative Law operates.

If you anticipate having a difficult divorce, you should consider using Collaborative Law to help you get through the experience with the best customized results and the least amount of damage to you. Make sure you talk with a trained Collaborative lawyer so you can get accurate information about your options. For more information about Collaborative Law, please look at the Texas Collaborative Law Blog. Good luck!

The Top 5 Fears about Collaborative Law*

*and why you shouldn't worry!

Fears often have a major impact on how people make decisions. In an ideal world, decisions would follow a careful analysis of a situation and would include a consideration of the possible costs and benefits of a course of action. Unfortunately, such analysis takes time and effort, and many people succumb to the easier and quicker solution of just reacting to fears and assumptions that are readily available to justify bad choices. Here are some of the fears that must be dealt with when people consider using Collaborative Law to resolve disputes. These are the top 5 fears I have heard about over the past eight years. Other attorneys may have slightly different lists.

1. The process won't work and I will have to hire another attorney, and that's expensive. To me, that concern is the best incentive for the Collaborative Law process to work. Once in the Collaborative process, attorneys may not go to court on the case, except to prove up an agreement. In litigated cases, there's almost always negotiations and most cases settle at some point, but there's always the threat to take the other party to court if he or she doesn't agree to do what the spouse wants done. There is often a power imbalance in negotiations in litigation cases, and the threat to go to court often forces the other side to do something he or she might not want to do. Since both parties would have to hire new attorneys to go to court, the threat usually becomes a non-factor. Without the threat to go to court, the parties are forced to stay in the process and rely on creativity rather than force. The result is better agreements that both parties can feel good about.

2. The other party will hide information. Actually Collaborative Law, using a neutral financial professsional (FP) and a neutral mental health professional (MHP), provides better oversight than most litigation. The parties start out promising to honestly and voluntarily share information. In contrast to litigation, both attorneys assume an obligation to assure that all relevant information is provided to each side. The financial expert reviews the records, can seek additional records or explanations and analyzes the information received. The analysis is shared with both sides and options are generated together. The neutral MHP also helps assure that all relevant facts are provided. With two attorneys and two other neutral experts involved, it would be hard to hide information during the process. Of course, no system is perfect and experienced family law attorneys are well aware of the extent and nature of deception which is often utilized in traditional litigation. At worst, there is no reason to believe that Collaborative Law would make it easier to hide information than litigation does. In reality, Collaborative Law provides many more safeguards.

3. The process will be too slow. First of all, a contested litigated divorce will often take a year or more (I have had some bad ones last 3-5 years). A Collaborative case will only move along as fast as its slowest party allows it to move, but Collaborative cases usually will resolve much more quickly than a litigated case, unless the parties want to do otherwise. I have had some cases slow down and last a year or more, but that was what the parties wanted to do. A couple of times, we took off for two or three months because there was about to be a wedding in the family and they didn't want the stress of the divorce to detract from the wedding. We have also slowed down a divorce because of housing needs or employment situations. On the other hand, in some cases, we are able to wrap them up right after the 60-day waiting period (for all divorces) is up.

4. Collaborative Law is too expensive. When we start talking about bringing in a financial expert and mental health expert, sometimes clients get nervous about the cost. That would be understandable if we planned to have both experts attend all meetings with both attorneys and the parties. In reality, there are few meetings when everyone is present. While we usually have the MHP attend the joint meetings with the attorneys and parties, the FP normally works directly with the parties in gathering information, discussing the needs and abilities of the parties and preparing budgets. The financial expert will also do some preparation alone. There will usually be one or more meetings with everyone present, but they are relatively streamlined because of the preparation done by the FP. In addition, we have found that the MHP is able to keep the joint meetings on track and we actually work more efficiently and effectively in the meetings. Also, we often have the mental health professional (or sometimes a child specialist) work separately with the parties to resolve any parenting issues. The result is an efficient process that uses the skills of neutral experts and actually involves somewhat less attorney time than a traditional litigated divorce.

5. The other party won't cooperate. While that can happen (it often happens in litigation), it rarely happens in Collaborative Law cases. Both attorneys screen their clients to make sure the clients understand their obligations under the Participation Agreement before it's signed. When a mental health professional is used, she or he can be helpful in avoiding or ending such lack of cooperation. The MHP's role is not to provide therapy, but she or he will work with the parties so that they are comfortable and feel safe in the process. Both parties face the same incentive to stay in the process and they can only do that by cooperating. Lack of cooperation has rarely been an issue in the Collaborative cases I have handled.

If you are considering whether to utilize Collaborative Law to help resolve a family law issue, please discuss your concerns with a qualified attorney who has been trained in Collaborative Law. The process will not work in every case, but a trained attorney with experience in Collaborative Law can help you decide if it would benefit you.

Just What the Doctor Ordered: Alimony

One word that evokes strong feelings of love and hate in the divorce world is "alimony". It’s obviously related to that other word with similar connections to love and hate: "money".

In Texas, alimony can be awarded while a divorce is pending or after it is final. Attitudes of judges, lawyers and the parties often make "temporary" alimony a very limited option, and post-divorce court-ordered alimony is very rare in Texas because of both the long-ingrained attitudes and a very restrictive statute that makes it difficult to qualify for alimony and permits only a small amount for a short duration. On the other hand, voluntary alimony paid by agreement can be very flexible and mainly needs to comply with IRS regulations.

In some divorces, clients refuse to consider alimony in voluntary settlements. That is a very short-sighted approach. It is often because of popular misconceptions that assume Texas alimony law is like alimony in other states where it can be almost automatic, substantial and long term.

Wiser and more creative parties discover that alimony can be an excellent tool that helps cases settle. It can enable both parties to meet their goals and needs, while providing tax relief for the paying ex-spouse. The parties need to make sure that it is not used to replace child support and that it is not tied to events or dates relating to children; the IRS really looks for disguised child support. Done properly, alimony can be a cost-effective means to help the other party get on his or her feet, start a new career or deal with other transitional issues resulting from the break-up of the family.

Alimony payments can promote good will within the family which may trigger a willingness to make concessions in other areas. While alimony may not be appropriate in every case, it certainly should be considered for the benefit of both parties in a high net worth divorce situation. In many long-term marriages, one spouse has not worked outside the home for years and that spouse will need some extra help. Providing that help in a thoughtful and creative manner can lead to a win-win situation for both parties, which is the best cure for a family in pain.

Mediation vs. Collaborative Law in Texas

Recent posts by the Oklahoma Family Law Blog and the Kansas Family Law Blog discussed the differences between mediation and Collaborative Law. From state to state, there are always some differences in laws, and that is also true in this area. The differences are not huge, but are noteworthy. The following is a similar discussion of the differences between mediation and Collaborative Law, but in the Texas context:

1. In Texas, attorneys are generally present during mediations, just as they are in Collaborative cases. In several other states, the parties usually attend mediation sessions without attorneys.

2. Texas mediations are most often conducted using the caucus model. The parties and their respective attorneys usually stay in separate rooms, with the mediator shuttling back and forth between rooms to convey and discuss offers and objections. There is little or no face-to-face contact between the parties at most Texas negotiations.

3. Mediations in Texas are usually a one-shot process, scheduled for all day or half a day, with no subsequent sessions. Sometimes, complex cases result in marathon sessions. Rarely, there are follow-up sessions to try to complete the settlement. The result, especially in half day mediations, is a lot of pressure to settle quickly, without much time for generating alternatives or considering consequences. Collaborative Law cases are usually resolved through a series of relatively short negotiating sessions.

4. Collaborative Law cases in Texas often involve neutral experts who work for both parties. In mediations in Texas, there’s usually no expert at the mediation, or there may be two of each kind of expert, one for each side. There’s usually no communication specialist or coach for the parties in mediation to help them be more effective in negotiating. As a result, bad behavior is not moderated.

5. The lead up to each system is also different. In Texas cases, mediation usually occurs after there have been court hearings, formal discovery and exchanges of offers and counteroffers. There is a spirit of competition and settlements are considered in part in comparison to what the parties think the judge might award. In Collaborative cases, there are no court hearings, formal discovery or preliminary exchanges of offers. There are a series of meetings where issues are discussed and information is voluntarily exchanged in a spirit of cooperation. The objective in a Collaborative case is for both parties to achieve their goals, rather than to just maximize the settlement for one party.

6. The basic problem-solving framework is different for each approach. In a Collaborative case, the parties first identify their goals, then gather information and share it. Next, they identify the issues and brainstorm possible solutions. After the parties evaluate the potential solutions, they negotiate to reach agreement. In most mediations in Texas, positional bargaining is the most common approach. For example, someone may think that 55% of all the assets is what they should end up with, so they start demanding 65 or 60% of the assets so they can compromise and reach their target.

7. In Collaborative Law, there is no threat of "just letting the Judge decide". Unfortunately, that is a common ultimate fall-back position in Texas mediations.

While this post may sound pretty derogatory about mediation, that is only true when Texas-style mediation is compared to Collaborative Law. If there were a possibility of several sessions of mediation and the parties negotiated face to face and if the parties used interest-based negotiations instead of positional bargaining, the process would be greatly improved. Even as it is practiced in Texas, it has a tremendous value and has settled probably 90-95% of the cases where it is used. It is usually better than letting a judge decide the matter and the parties often are happy with the settlements they reach. The value of mediation is affirmed by the fact that it is sometimes used in Collaborative cases as a tool to help settle some issues while the parties are still in the Collaborative process. Clearly, there’s a need for mediators as well as Collaborators.

End of Summer Custody Disputes: Possible Solutions

The family law courts usually become busier in late July and August. Many custody change cases are filed and the parents want the issue resolved favorably before school starts. Unfortunately, it often takes many months or a year or more to get a final decision. Sometimes, it’s hard to get even a temporary decision before school starts. On top of that, it can be a very expensive process to be involved in.

When faced with a choice to file for custody, or a choice of how to
respond to a custody change suit, wise parents will consider whether there are any other ways for the parties to achieve their goals. The answer often is "yes".

Here are some suggestions to consider if you are faced with this issue in the near future.

• The parents can work together through the Collaborative Law process. It would be especially beneficial to bring in a child specialist to help them come up with some original creative ideas.


• If a parent really just wants more time with the child and recognizes that the current home is good, maybe letting the non-custodial parent pick up the child after school, or see the child in the evenings during the week or have an extra night or two overnight would help.


• If there are school problems, maybe bringing in a tutor, or letting the other parent tutor, would solve the problem. With school issues, it really is better to have both parents working together to come up with solutions. Again, a child specialist could be very helpful.


• Having both parents take a co-parenting class would help, especially if they were in the same class together. That way, they would both get the same information.
• If there are scheduling problems, maybe the parties could use an on-line service to share a calendar. There are several services available at very little cost and not requiring high tech expertise.


• The parents could also go to counseling together or even include the child in counseling. If the parties can work together somewhat, attending counseling together could be very effective.


• If both parties have strong feelings about some issues, they could go to a mediator or meet with a child specialist to work out some creative solutions. Having a qualified, neutral professional help them would give them a better chance of success.

You may have noticed that none of the suggestions involved rushing to the courthouse, filing and getting a hearing as quickly as possible. That’s because going to court is expensive, it escalates the fighting, it damages relationships and it generally will result in some standardized order that may not be very comfortable or effective for the parents and child. Usually, one side prevails in court and the other loses. Creativity is in short supply at the courthouse. A better solution is to think and talk before filing. Don’t get caught up in the emotion or perceived opportunity to succeed by starting a court fight. A better course of action is to keep the big picture in mind and focus on what’s truly best for your child – not just what you want!

Adding a Financial Professional in a Collaborative Divorce

While there are several different versions of Collaborative Law utilized around the country (and now, the world), in Texas we usually at least suggest, and often insist, on bringing a Financial Professional (FP) into the process either at the outset or very early. Understandably, the initial reaction of some people is that they can’t afford the cost of another professional. In reality, there is usually a cost savings as a result of the help provided by the FP. That savings is a result of several factors.

First, a qualified FP who is trained in Collaborative Practice can be invaluable in coordinating the gathering, organization and analysis of the financial facts in the case. Generally, the FP starts out with more knowledge of finances than either of the attorneys and can help the parties focus on the important information, help them locate the information and then put the information into a format that is easy for all to work with. That usually turns out to be a more efficient process than one where the attorneys gather and organize the information.

Second, having a single, neutral FP managing the financial information means that one professional, often charging less than either attorney, is carrying out a major part of the Collaborative process. There is no duplication of effort and the clients end up saving a lot of money. Additionally, one of the major roles of Financial Professionals is to analyze and explain the tax consequences of various courses of action. As a result, the parties can make sensible decisions where both can benefit and save money. Who doesn’t enjoy saving money?

Third, a good FP can not only save time and money – sometimes they save the process and make it possible to successfully complete the case. An FP provides a neutral voice with expertise. Occasionally, near the end of the process when the issues and options have been narrowed, it helps to have a neutral trusted advisor who can explain things to both parties. Sometimes, it is necessary to explain the same issue in different ways to each party so that each understands it. A well-trained FP can recognize that need and will have the Collaborative communication skills to be able to do so. Often a suggestion or question coming from an FP can have a much greater impact than if the same suggestion or question had come from one of the attorneys. The neutral Financial Professional may be in the best position to get the parties to reach an agreement on the final issues when negotiating is often the toughest.

It is important for the parties in a Collaborative Divorce to understand that bringing in a trained Financial Professional will pay off for them in many ways. They can save a lot of time by allowing the FP to efficiently manage the financial information. They can save money by allowing a single professional to handle a lot of the work that otherwise would be done by two expensive attorneys. Finally, they can avoid the cost of failing to reach a final agreement and having to hire new attorneys and go to litigation. Generally, a trained FP can help the parties understand the financial issues and see the benefits of reaching agreements on various issues. Adding a Financial Professional makes success more likely and less stressful for the parties.

A Win-Win Custody Battle Strategy

Many times, at the start of a divorce, parents see custody of the children as an either-or situation: one parent has custody and the other is relegated to a visitation/possession schedule. In situations where both parents sincerely would like “custody”, and it’s not just a strategic move for some ulterior purpose (such as gaining more property or paying less child support), the either-or/win-lose mind set can lead to really damaging actions by both parties. In such an approach, the natural inclination, often encouraged by attorneys and friends, is to attack the other parent. Many people think they should devote a lot of energy to proving the other parent is “unfit”.

Actually, it is often true that both parents are good parents, which makes it really hard to prove each other unfit. Attacking each other is expensive in the short-term, both financially and in terms of relationships, and it’s probably not really very persuasive with a judge or jury. It’s hard to keep a good relationship with someone who is saying terrible things about you in public. Judges want to know what good parenting qualities each parent has. In reality, one of the most important factors is who has spent the most time with the children, although there can be many things that are influential.

Instead of limiting yourself to only two options, winning it all or losing, there is another, more productive way to approach the custody issue. The approach may require more maturity than some parties can muster, but, for those able to shift gears, think rationally and be patient, the following approach can be rewarding for them and their children. These steps can lead to a better solution for all, especially the children.

1. Think about, discuss and decide what your ultimate goals are for the kids. What outcomes would you like to see? Many people would want some of the following (or similar) goals:

The kids having a great relationship with both parents
The kids having a great relationship with their extended families
Financial security for the children
Having a safe, secure home for the children
Having good schools for the kids
Providing for a college education for the children
Providing sports opportunities for the children
The opportunity for the kids to learn music, art or other interests

Each parent can decide what he or she thinks would be important goals for their children. Broader, underlying goals are more helpful and meaningful. If both parents think of goals in broad terms, they often can agree on them.

2. Look at the big picture. What are the resources to work with:

Financial abilities of the parents
Parental/family member time available
What homes and schools are available and affordable
What the parents’ neighborhoods are like
The existing relationships between parents and children and the roles each parent plays with the children
What community resources are available
What special needs, if any, a child has
What interests the child has

3. Brainstorm options. Think up as many different solutions as you can. Sometimes it is helpful to get help from a parenting expert. Spend some time and try to be non-traditional or unconventional. Don’t limit yourself to “standard” solutions. Open up your thoughts to come up with some crazy ideas because they might just turn into good ideas.

4. Evaluate your options. See if they can help achieve your identified goals. Criticizing and testing your options can lead to the discovery of other ideas and can help you narrow down the choices until you are left with an idea or ideas that work.

Implementation: This process can helpful if just you do it, but it is really better if you can do it with the other parent. Collaborative Law is one way to accomplish that. This is actually a very common approach to problem-solving in Collaborative Law. Even in traditional litigation, you can use this system alone or together with the other parent. If you work on this alone, you can create a better plan to present in court or in negotiations. If both parents work together through this process, there’s an excellent chance they will reach an agreement that will be satisfactory to both parents and to the children.

Please give this a try and let me know how it works for you!

Myths about Collaborative Law

Although Collaborative Law can be considered a breath of fresh air in the legal system, it is still a relatively new process for resolving disputes in Texas. It’s not widely known, but more and more people are learning about it and requesting that it be used. As the public learns about the process, lawyers are also learning about it and getting trained in its methods.


Because most people in Tarrant County are still not knowledgeable about Collaborative Law in Texas, there is a lot of misinformation circulating about it. I will briefly mention some common misconceptions. These will refer primarily to divorces, but Collaborative Law can be used on just about any family law issues.


1. "It only works if everyone is agreeable and wants to be fair." Not true. Like any other divorce, a Collaborative divorce usually involves some serious disagreements. People bring their own agendas to the process and may choose it for a variety of reasons. The reason is rarely that everyone just wants to be fair and agreeable. (See other posts on this blog for reasons why people choose Collaborative Law.) The Collaborative process changes the way people act as they create solutions and achieve their goals.


2. "It won’t work for custody cases." Not true. Actually, Collaborative Law in Texas provides better resources, in a more humane environment, for resolving custody cases, than does traditional litigation. We use neutral experts, when needed, who work for both parties and help them find or create new solutions that are customized to the parties’ unique situation. In comparison, litigation generally relies on a "winner take all" approach and usually closely follows the statutory guidelines and schedules, whether they fit the situation or not.


3. "Both parties must completely trust each other for the process to work." Not true. While there needs to be basic trust between the parties, the process provides more direct involvement by the parties, excellent verification of facts and the assistance of neutral experts who directly work with the parties to gather and interpret information. There will probably never be a divorce with complete trust between the parties – if that existed, they probably wouldn’t be getting a divorce.


4. "The process won’t work if there’s been adultery or other misbehavior." Not true. There have been many successful Collaborative cases which involved adultery or other troubling issues. If people are willing to commit to focusing on their future instead of their past, they can successfully settle a case even with serious past indiscretions.


5. "There’s no ‘Discovery’ or exchange of information." and "Either party can easily hide assets and there’s no way to find them." Not true. The parties fully disclose records and information to each other, we usually prepare a joint sworn Inventory of the assets and liabilities and we utilize various joint, neutral financial and child experts as needed. We don’t do formal written discovery or depositions. Instead, we get a thorough, but focused, overview, and rely on neutral experts to evaluate the facts and help us find and verify the relevant information. No system is perfect, however. The litigation system certainly has its share of hidden assets that "disappear" and are never located.


6. "It’s the way I/we have been practicing law for years." Not true. Some attorneys, particularly in Tarrant County, Texas, have been very cooperative and less confrontational for years, which is great. For a long time, it has been obvious that well over 90% of all divorce cases settled without a trial. Those are similar characteristics, but Collaborative Law is different: the lawyers cannot go to court (except to finalize the divorce and get the agreed order signed); at the outset, we focus on the parties’ goals and then follow a 4-step problem-solving process; we use neutral mental health and financial professionals in most cases; and we meet and talk directly with each other in a series of relatively short meetings. Those are just some of the ways the processes are different.


7. "Most people just need to get the best outcome possible for themselves". Not true. That implies that Collaborative Law won’t help a person as much because it tries to have a good result for two people. Actually, there is no reason why both parties can’t have a good outcome. Collaborative Law’s emphasis on creating new, unique solutions means that the pie to be divided can actually be enlarged. Instead of relying on standard formulas and guidelines, Collaborative lawyers help the parties come up with new approaches "outside the box". While some people are angry and want revenge on their spouse (and are not good candidates for Collaborative Law), a probably much greater number just want to get through the process without breaking the bank. Most people would accept a good outcome for their spouse if they also receive a good outcome.


As more people find out about Collaborative Law, many more will choose the resolve their important family legal disputes by that process. Clearing up myths, like the ones above, will help more people under how Collaborative Law works and can benefit them.

Show Your Love with a Prenuptial Agreement

In spite of the high rate of divorce seen throughout the country, couples keep getting married, some for the second or third time, some even more times. Divorce, however, is not ignored by the soon-to-be-wed partners, especially those who have been married previously. For people with significant assets, one preventive measure often taken is a prenuptial agreement.

There are a number of reasons why prenuptials are considered.

• For some older couples, prenuptials are for estate planning. They are prepared to avoid conflicts with or between adult children. Prenups can also determine how probate issues are resolved. Appropriate planning can result in savings of taxes and legal fees and can provide reassurance that each party will receive the financial support that both parties presently intend. A prenup can also protect the inheritance (if desired) for the children of each party.

• Prenuptial agreements can protect businesses. If there is an existing business run and owned by one of the parties, a prenup can ensure that the owner does not lose control or ownership of the business. The agreement can also provide that an increase in value in a business would be a separate property asset or a community asset. It can also determine how business debts are paid.

• Some people want to avoid repeating an unpleasant divorce experience. Prenuptial agreements can pre-determine various issues from property division to attorney’s fees to alimony, among other things. The result is a shorter, less expensive divorce, although one party may feel taken advantage of. (A feeling which often occurs in divorces for various reasons.)

In cases where a party seeks a divorce after having signed a prenuptial agreement, it’s not unusual for one party to want to break the agreement. Courts examine a number of factors in determining whether an agreement is valid. If you’re thinking about getting or signing a prenuptial agreement, it’s helpful to understand what mistakes to avoid.

What a court looks at in Texas:

• It needs to be a voluntary agreement. In many cases, a party doesn’t want to sign the agreement, but believes the marriage won’t happen unless the prenup is signed. A court will look at all the circumstances to determine if the agreement is voluntary.

• There must be disclosure. If assets are hidden and not disclosed to the other party, a court may set aside the agreement since there is a lack of understanding of the assets and the impact of the agreement.

• The agreement needs to be written and signed.

• Each party should have their own attorney. While it is not essential, it is good practice. A court is probably more likely to set aside an agreement where one party did not have an attorney. (One attorney cannot represent both parties, either.)

• There should be adequate time to discuss the situation, understand the facts and make a voluntary decision. Unfortunately, most people tend to wait until the last minute to start working on an agreement.

One Solution:

If the parties use a Collaborative Law approach to preparing a prenuptial agreement, the stresses of the procedure can be minimized, an enforceable agreement can be reached and both parties will be able to support the agreement because of how the process operates.

Advantages of creating a prenuptial agreement:

While prenups may not seem like a very romantic topic to discuss just before a wedding, there are some solid reasons for doing so and some potential advantages, other than the obvious ones.

• It forces the parties to look into the future and communicate about some important, although not romantic, subjects.

• Done right, the process will reinforce feelings of trust and security while clarifying expectations and values for each party.

• The different communication styles of each party may be demonstrated at a time when there are alternatives available for each person. The good and the bad may come out.

• While attorney’s fees for preparation and signing a prenuptial agreement can be substantial, they are a lot less than a contested divorce or probate case would cost. Spending the money up front to prevent a problem can be well worth it.

• If Collaborative Law is used, the parties will learn about each other’s goals and learn how to work together and communicate better. It may also lead the parties to be more open-minded and creative with each other. A Collaborative approach takes a little while to do, so it probably won’t work if you start three days before the wedding.

Conclusion

For couples getting married, prenuptial agreements can be a valuable tool or they can create hard feelings and put someone at a significant financial or power disadvantage. Agreements can be helpful to both parties, but they cannot be put together properly and effectively in just a few days. Starting work on the process early, and especially using Collaborative Law, can produce a beneficial agreement that will stand up in court and can enhance a relationship.

How to Save Money in a Collaborative Divorce

When people learn about Collaborative Law as they are about to begin the process of divorce, many become very interested in trying it because of the opportunities for creative solutions, privacy, control over the outcome, civility, etc. that are associated with Collaborative Law.

Some are a little skeptical about whether they and their spouse can get along well enough to work out an agreement. When a Collaborative attorney explains that the Texas model of Collaborative Law offers the assistance of a neutral mental health professional (MHP) to help both parties operate at their most effective and cooperative levels, they like the idea, but sometimes worry about the cost.

What we have learned is that the cost of the MHP is a great investment because the MHP helps both parties communicate appropriately and maintain a safe and relatively calm environment. The Collaborative process actually helps meetings be more productive and less argumentative than they could be otherwise. In addition to being more comfortable and satisfied with the process, the parties actually end up saving money.

In a Collaborative Divorce, the phrase, "more is less" really makes sense. By adding another participant to the process, the parties operate more efficiently and spend less time arguing. The time they spend in meetings is productive because they are assisted by the neutral MHP who helps the parties communicate in more helpful ways that advance their own interests. While it may seem personally satisfying to berate a spouse for various faults, those comments rarely contribute to an eagerness for that spouse to want to settle.

There are some potential difficulties in Collaborative cases even with parties who really want the process to work out. Inevitably, there are some tough, emotional meetings that challenge the abilities of the parties to maintain the civility that is a hallmark of Collaborative law. Hiring a neutral mental health professional may be the single best way to save money in a Collaborative Divorce.

When and How to Settle

Most family law cases (probably 90-95%) will settle before a judge rules on them. Given that fact, it makes sense to focus on finding the best way to get the best agreement possible. It also makes sense to start thinking about settlement at the beginning.

As Stephen Covey and others have suggested, I like to start with the end in mind. Although it is often difficult for people going through the emotional trauma of a divorce or other family law issue, identifying and then focusing on a person’s most important goals, needs and interests provides the best guidance for getting through the process in a way that minimizes damage and leads to the best possible outcomes permitted by law.

The path to resolution used in Collaborative cases is very effective and can often be used even in litigated cases ( just not as well).

• First, determine the parties’ goals, need and interests (for both parties).
• Second, discover and organize the facts in the case.
• Third, brainstorm possible solutions and generate as many options as possible.
• Fourth, evaluate the options.
• Fifth, negotiate and reach an agreement.

It really helps to understand the other party’s motivations and needs. Spending time figuring out those things can pay off when negotiations are going on to settle a case.

Court hearings are rarely the best way to resolve issues. They are stressful for the parties, expensive, slow, and often result in arbitrary rulings that don’t solve the most important issues. Some attorneys adopt a strategy of wearing down the other party through expensive and stressful court hearings, discovery processes and threats. That approach is sometimes successful, in the sense that a party may wear out and give up, or they may run out of money. However, that doesn’t bring peace and it is often very destructive to relationships between parents who still have to raise a child.

Court hearings are sometimes used as an "easy way out". It takes less effort and creativity to raise a complaint or issue and then just turn it over to the judge for a ruling.

Sometimes court hearings are unavoidable, especially if the other party is unreasonable or uncooperative.

In most cases, persistence and creativity will lead to excellent settlements, if the parties start with the end in mind.

Who is a Good Candidate for Collaborative Law?

As you may know, Collaborative Law is a process for resolving legal disputes without going to court, except to have an agreement approved by a court. Parties engage in a series of relatively short meetings where they identify their goals, assess the facts of the case, brainstorm to generate options to solve problems, evaluate the suitability of the various options and then create or select the best means to achieve the goals for each of the parties. Neutral experts are often brought in in Texas Collaborative Law cases, as needed, for specific functions. If the process breaks down, the parties must retain different attorneys to go to court with them.

Collaborative Law is a voluntary choice at the outset and the parties can opt out at any time, but it works about 93-95% of the time because, for most cases, it can result in more creative, customized and peaceful solutions than traditional litigation. While it may seem counterintuitive, many people are able to be open, honest and cooperative even in difficult cases that involve issues such as custody, extra-marital relationships, unique possession schedules and substantial and complex property issues.

People who have been choosing Collaborative Law have one or more of the following characteristics. They –

Value privacy. Collaborative meetings are private. There are no public hearings at the courthouse. Personal and financial information can be protected.

Want to make their own decisions. Instead of turning things over to a judge, the parties are able to create their own solutions and not be bound by tradition or arbitrary guidelines or standards.

Prefer to determine their own time schedule. In a litigated divorce, the parties often must follow an arbitrary time schedule imposed by a court and can be required to appear or take actions whenever the court wants them to, regardless of convenience or needs. In Collaborative cases, the parties decide how fast or slow they move and set meetings or take actions when they want to do so.

Often want or need to maintain a good relationship with a spouse, post-litigation. If the parties are parents, they usually see the value in cooperating and sharing the raising of their children.

Appreciate saving time and money by using jointly-hired neutral experts who work for both parties to create solutions. A neutral financial planner can often save money (and assets) for both parties by wise use of tax planning when assets are divided.

Are concerned primarily with the children’s best interests. They get neutral expert help to set up workable arrangements that suit the children and fit the parents’ situation.

Look to the future, rather than dwell on past conflicts. They focus on what good can come out of a difficult situation instead of dredging up all the past arguments and dirt on the other party. They may have had a bad experience in litigation, or may have seen it with family or friends. They realize that they can accomplish more and get better results by cooperating and acting as mature adults.

Collaborative Law will not work for everyone, but it is a great option for many. People who are mentally ill, violent or just very unrealistic are not appropriate for Collaborative Law. Likewise, people with fixed ideas, unwilling to consider other options, cannot function in a Collaborative case. For many others, such as ones described above, Collaborative Law encourages hope for the future and life with less conflict.