Articles

For Immediate Release: Collaborative Law - Taking Texas By Storm
Dateline: Dallas, Texas

Maybe you have heard of it, and maybe you haven’t, but if not, you will. Collaborative law is taking Texas by storm. In 2000, a group of top family lawyers got together and decided that litigation was not an effective way of handling family law disputes. They attended a training session with Pauline Tessler, a well-known collaborative family lawyer from California, and Stu Webb, the father of collaborative family law; and thus began the collaborative movement in Texas. In 2001, the Texas legislature enacted statutes to provide for the collaborative law process in family law cases, making Texas the first state in the country to have such a statute. In the 2005 legislative session, Representative Toby Goodman introduced House Bill 205 to add a chapter to the Civil Practice and Remedies Code providing for the collaborative law process.

So what 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 their 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 provides even more incentive to work hard to avoid an impasse and reach a resolution.

Unlike litigation, collaborative law gives the parties control over the outcome of their case. The collaborative lawyers are trained in the process and in various tools, like interest-based negotiation, to help both parties reach the best possible outcome under the circumstances; but ultimately, the specific outcome results from the parties’ themselves. Throughout the process, the focus is on meeting the clients’ interests and needs rather than on defending positions. As an attorney, you are still a zealous advocate for your client, but you can focus on problem-solving rather than adversarial tactics. In addition, collaborative law allows for more creative and individualized choices. As a non-adversarial process, collaborative law further 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).

Collaborative law proceeds through a series of joint meetings between the parties, their respective attorneys, and any other professional that may be jointly engaged to assist. For example, it is becoming more and more common to engage a mental health professional as a communication specialist from the very first meeting to assist with shepherding the parties through the process. In fact, many collaborative lawyers no longer handle cases without one. Depending on the specific facts of the case, other professionals and experts may also be jointly retained. This interdisciplinary “team” approach has been very effective in many cases here in Dallas and is more efficient. For example, if an expert is needed on the case, the parties will jointly engage a single neutral expert rather than an expert for each “side.” Furthermore, involving other professionals is a more efficient use of the clients’ resources as the professionals handle the portions of the case that are within their respective purview, allowing the attorneys to focus on the legal aspects and ramifications.

When it comes to cost, the non-adversarial nature of collaborative law results in lower emotional and financial costs. Financially, 100% of the lawyer’s time and resources go toward settlement in the collaborative law process, whereas much of the time and client’s money in litigation is spent in trial strategy and preparation, even though most cases settle. So while the collaborative process may not be inexpensive, it is certainly more cost-efficient than litigation.

The benefits of collaborative law are numerous, as many Texas families and their lawyers have discovered. Many lawyers agree that other practice areas could also benefit from the collaborative law process. If you would like to learn more about collaborative law, please see the Collaborative Law Institute of Texas’ website (www.collablawtexas.org).