Side by side with my fellow East Texas family law professionals, I spend hours each week in the courtroom, trying cases and helping families understand the process of family law litigation. I always aim to leave families in a better position than when they first came to me for counsel, but the process takes its toll on clients and children. The adversarial nature of litigation requires spouses and parents to position themselves against the other side – carefully analyzing their best characteristics and the other side’s bad ones. This process can adversely effect future communication and decision making between the parties. Are there other options for family law dispute resolution?
What Is Collaborative Law?
Collaborative law refers to an alternative method of solving legal disputes that avoids traditional court proceedings. Rather than filing a lawsuit, each side agrees to a series of sit-down negotiations between the parties and their attorneys, as well as therapists and other experts trained in the subject matter of the dispute. These meetings allow the parties to openly exchange information and participate in discussions with an understanding that nothing communicated will later be used against them in court. The collaborative law process is founded on good faith. By taking a cooperative approach, rather than an adversarial one, parties can resolve difficult issues that would otherwise lead to expensive and time-consuming litigation.
Collaborative law can be beneficial in highly emotional cases. The vast majority of collaborative law cases deal with divorce, child custody and modifications of child support, visitation and custody. Due to the emotionally sensitive subject matter, family law litigants may disregard the undesirable consequences of using the legal system to fight about relatively minor issues. These cases can spiral out of control, with the potential for each side to spend far more money on legal fees than either stands to gain, even in the unlikely event of a complete victory. Considering that the care and wellbeing of young children may be at stake as well, using collaborative law to handle family law conflict is the best choice for many families.
Comparison to Traditional Litigation
Litigation is appropriate in cases where compromise is not the objective, such as cases brought by victims of domestic violence against their abusers or cases involving mental health concerns where negotiation is an unhealthy option. However, for many individuals, the negative aspects of litigation outweigh the potential benefit. Litigation can be expensive. Due to backlogged court dockets, litigation is a slow process as well. Private, sensitive, or embarrassing information is often made public, either in open court, or in court filings. Moreover, the parties face challenges in maintaining a cordial relationship once the case ends. This is a particularly important concern for divorcing spouses who will share custody of their children in the future.
Collaborative Law Benefits
Although collaborative law is not necessarily quicker and less expensive, the parties directly control how the proceedings unfold. Those who feel that certain issues require more consideration and debate can insist that adequate time is spent crafting a resolution, or that additional experts or therapists are brought in to provide insight. On the other hand, those who want to expedite the case are free to compromise on contested issues and reduce the time it takes to resolve the matter. The parties work through the issues at their own pace, not according to the court’s schedule.
Collaborative law also offers the benefit of confidentiality. The parties are not required to put their allegations into written pleadings, motions, and other court filings that can be viewed by the general public. Another benefit of a collaborative approach is the built-in financial incentive for the parties to make the process work. If it fails, and the case must be moved into the court system, then the attorneys for both sides must withdraw. Any consultants hired during the collaborative stage must also resign. When it appears the parties are at an impasse in their negotiations, this underlying threat of both sides starting over with a new team of professionals is often enough to encourage the parties to move forward.
Collaborative law is a valuable alternative if you are faced with family law conflict or dispute. Although it is not for everyone, it is certainly worth consideration.