Sunday, August 12, 2007

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.

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