Texas was the first state to enact a collaborative law statute in 2001, and in 2011 Texas adopted a version of the Uniform Collaborative Law Act. The statutory collaborative law procedure involves the parties’ and their counsel’s agreement in writing to use their best efforts and make a good-faith attempt to resolve their divorce on an agreed basis without resorting to judicial intervention except to have the court approve the settlement agreement, make the legal pronouncements, and sign the orders required by law to effectuate the agreement of the parties as the court determines appropriate. The parties’ counsel may not serve as litigation counsel except to ask the court to approve the settlement agreement. And once the parties elect to proceed with the collaborative process, the case may not be set for trial or hearing for 2 years.
In the formal collaborative process, the parties’ written agreement sets out how the parties and their lawyers will proceed in disclosing information and negotiating the terms of the divorce settlement, including issues concerning the children and property division. The process envisions timely, candid and full informal disclosure of pertinent information, but also allows the parties to define the scope of disclosure. And a new provision of the Texas collaborative law statue provides that communications disclosed during the collaborative process are privileged.
Lawyers are ethically required to obtain a client’s informed consent to use the collaborative process, which requires discussion of the material benefits and risks of the collaborative approach as opposed to other reasonably available alternatives.
Often the lawyers will recommend that the parties also engage allied professionals to participate in the settlement process, such as a financial advisor to review property division proposals and a counselor to address child related issues. If the parties cannot come to agreements through the collaborative process and they need to ask the court to resolve some issues, then either party may declare an impasse. Because the collaborative lawyers cannot serve as litigation counsel, they must withdraw from the case if one of the parties declares an impasse. Then, each party hires a new lawyer to represent them in the divorce case.
The formal collaborative process is often successful because the lawyers handling the settlement discussion process are not threatening to the parties, who may be reticent to talk openly to an opposing counsel who may later cross examine them in a court hearing, and because once the parties invest money and time in the collaborative process the notion that they must change lawyers to resolve a dispute sometimes diminishes the importance of disputed issues.
Many people expect to be able to reach agreements in their divorce and want to handle their case amicably, but they do not want to be forced to dismiss their lawyer if a court hearing is necessary to resolve some issues. We often use a variation of the statutory collaborative law process which involves agreements between parties and their counsel about how to handle appropriate information gathering steps and prepare for settlement discussions with the objective of avoiding costly court hearings. An advantage of this informal collaborative process is that the parties maintain the option for their lawyers to seek a court resolution of issues they cannot resolve between themselves, perhaps only a temporary order to address interim support or scheduling issues.
We urge our clients to consider any method that could result in an agreement and avoid litigation, so we handle cases in various ways that may serve that goal. We have learned that it is important to consider all options that may apply to each client’s situation, to focus on the client’s priorities, and to help the client responsibly manage the available resources to address the issues presented.