Collaborative Family Law: Is It for You?
The collaborative law process is an alternative to litigating family disputes such as divorce, child custody, and child support. Instead of taking the disputes to court, the parties involved sign a “collaborative law participation agreement” that sets forth the guidelines and ground rules of the process. The agreement also sets up a structure of time lines and commitments the team of neutral mental health and financial experts, and each party’s collaborative divorce attorney, is to follow. The team of experts is mutually selected, and neither the experts nor the parties’ attorneys can be part of any future litigation should the Collaborative Law process reach an impasse and the need for litigation arise.
The reason for disallowing participation of the attorneys and experts should the case end up in the court system is that such a rule, agreed to in the participation agreement signed by all parties at the beginning of the process, creates a powerful incentive for parties to settle their disputes within the Collaborative Law process. Hiring new counsel and forming a new team of experts is hugely expensive and time consuming.
Collaborative Law is a different approach to that historically used to settle disputes. Three of the most remarkable distinctions are as follows:
1. Parties specifically agree to treat each other with civility, and dignity and respect and are reminded of that agreement if the process begins to veer off course;
2. Parties agree to concentrate on identifying and meeting needs rather than arguing over positions;
3. Parties agree to full and honest disclosure of financial and other information.
Collaborative principles, like these, foster an environment conducive to resolving conflict and finding custom-made solutions that truly fit both parties’ needs. However, the Collaborative Law approach might not be appropriate in cases of abuse, family violence, or when one party is not able or willing to focus on meeting needs. The existence of an emergency or the level of animosity between parties may also dictate that the best forum is the court system rather than the collaborative process.
If parties agree to the terms of the Collaborative Participation Agreement, there are other advantages of using the process to work out issues of child custody and support, namely, the three “C’s that describe the process as confidential, convenient and controlled. Unlike a courtroom, which is open to the public and where a record of the proceedings is made and kept as public record, the Collaborative Law process is private and conducted in a setting chosen by the parties. All settlement discussions, financial documents, mental health evaluations and recommendations, and child custody and support negotiations are kept private. The only things that need be made public are those documents that must be filed with the court for its approval, such as the divorce decree, property settlement, and the decision regarding child support and custody and there are ways to keep even those private.
The second “C,” convenient, is once again because the process is not in the court system and thus there is no set time schedule for negotiations, evaluations by experts, or filing deadlines. In addition, the setting for meetings and negotiations is completely up to the parties and need not be the uncomfortable and often intimidating courtroom.
Finally, the third “C,” controlled, actually underlies the other aspects of the Collaborative Law process. The participation agreement sets out a number of conditions that must be followed in the process, but those conditions are there to ensure that parties can take control of their own family law issues. The agreement sets out the “ground rules” and gives parties the opportunity to take control of the resolution of the disputes that are the most personal and the most important.
If you are facing family law disputes and wonder if the Collaborative Law process is right for you, call the attorneys at Goranson Bain PLLC, in Dallas, Plano, or Austin for a consultation.
This post was written by Clint Westhoff.
“I believe in taking a straightforward approach to managing cases, and making it very easy for our clients to understand the legal and factual issues in their case.” – Clint Westhoff