Collaborative Law FAQ
WHY SHOULD I CONSIDER COLLABORATIVE LAW?
Collaborative Law offers divorcing parties and their lawyers a structured, non-adversarial alternative to reaching a settlement. It assures individuals that they will be represented by aggressively compassionate legal counsel for the resolution of a problem, without court involvement.
HOW DOES THE PRACTICE OF COLLABORATIVE LAW AFFECT ATTORNEY’S FEES?
Representation and fee agreements between attorney and client are not directly affected by the participation agreement. Generally, however, many of the most costly parts of litigation (like depositions, multiple expert witnesses and hearings) are avoided in the collaborative process.
WHAT HAPPENS IF AN AGREEMENT CANNOT BE REACHED AND ONE OR BOTH PARTIES WANT A CONVENTIONAL DIVORCE?
According to Texas law, both spouses and their attorneys agree in writing not to go to court over any divorce-related dispute during the collaborative law process. If mutually acceptable terms are not reached informally, collaborative law attorneys can bring in the support of a mediator or other trained settlement negotiators. It is, however, always possible to exit the collaborative law process and return to a conventional divorce. If one party chooses to exit the collaborative law process, however, both parties’ attorneys are legally obligated to cease representing their clients. This is a strong incentive to stick it out and avoid the cost of finding a second attorney in order to complete your divorce under the conventional process.
WHAT HAPPENS IF ONE SIDE OR THE OTHER IS DISHONEST, OR ABUSES THE COLLABORATIVE LAW PROCESS?
While this can’t be completely prevented, the collaborative agreement helps guard against it. The collaborative agreement requires a lawyer to withdraw if his/her client is being dishonest, or participating in the process in bad faith. It is in the best interest of all parties to remain honest and allow the process to work.
DOES THE COLLABORATIVE PROCESS WORK IF I CHOOSE AN ATTORNEY WHO IS TRAINED IN THE PROCESS BUT MY SPOUSE’S ATTORNEY ISN’T?
Yes, as long as all parties agree to sign a Participation Agreement. Counsel who may not be familiar with collaborative family law must be approached by the attorney who is to determine their receptiveness to the process, and to using the process in this particular case. It is usually best to make the first contact, by phone, and to follow up with a meeting in person, and/or a letter with extensive information about collaborative family law. These materials should both describe the process and show its legitimacy as a dispute resolution process.
WHAT IS THE DIFFERENCE BETWEEN COLLABORATIVE LAW AND MEDIATION?
Under the prevailing model of mediation used in Texas, there is one “neutral” who helps the disputing parties and their lawyers try to settle their case.
This ordinarily occurs after the case has been prepared for trial, adversarial discovery has been conducted, and the parties’ positions have been “polarized” for forensic presentation to the court. The parties have already suffered most of the financial and emotional trauma of the traditional divorce case at this stage of the proceedings. If one side or the other becomes unreasonable or stubborn, or simply does not want to settle the issues without a trial, the mediator has no choice but to terminate the mediation and send the parties on their way, down the road to ultimate confrontation.
In mediation, there is one “neutral” professional who helps the disputing parties try to reach an agreement. The mediator cannot give either party legal advice or dictate a decision. The parties may or may not have attorneys and the attorneys may or may not be present at the mediation sessions. If there are no attorneys involved, the parties may not have ongoing professional advice regarding their legal rights and settlement options.
Collaborative Law is designed to protect the rights of each party, while keeping the same commitment to settlement. Each side has professional legal advice and advocacy at all times during the process. The parties, their attorneys, and other appropriate professionals function as a settlement team. When particularly tough issues arise, it is the job of the team to ensure that the process stays positive and productive – focused on acceptable resolution rather than “winning” or “losing.”
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