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Collaborative Law - What it Means to Texas Mediators
In the last couple of years some Texas attorneys have embraced a completely new way of practicing law in divorce cases‚ Collaborative Law. The 2001 legislative session passed HB 1363 which sanctioned the practice of Collaborative Law in family cases in Texas.
Collaborative law was the inspiration of Stuart Webb, a frustrated family lawyer practicing in Minneapolis in about 1990. While he quickly appreciated the benefit of mediation to families, he felt there should be a process that included early input from attorneys into the negotiation process. His "settlement only" model emphasized the skills of lawyers as creative problem solvers. Collaborative law arrived in California in 1993 after Minneapolis lawyers presented the idea at a national conference for the Academy of Family Mediators. Collaborative lawyers such as Pauline Tesler and Chip Rose, and others have shared their knowledge across the country and helped practice groups begin collaborative law practice groups. They have been instrumental in the creation of the American Institute of Collaborative Professionals. John McShane, Dallas, and Don Royall, Houston, have led the drive for recognition of collaborative law techniques in Texas.
The New Law
The new bill adds Sections 6.603 and 153.0072 to the Family Code. Both sections state as follows: On a written agreement of the parties and their attorneys, a dissolution of marriage proceeding or a suit affecting the parent child relationship may be conducted under collaborative law procedures.
The bill defines Collaborative Law as follows: a procedure in which the parties and their counsel agree in writing to use their best efforts and make a good faith attempt to resolve their dissolution of marriage dispute 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.
Provisions of a Collaborative Law Agreement
The new statute also states that a collaborative law agreement must include provisions for: (1) full and candid exchange of information between the parties and their attorneys as necessary to make a proper evaluation of the case; (2) suspending court intervention in the dispute while the parties are using collaborative law procedures; (3) hiring experts, as jointly agreed, to be used in the procedure; (4) withdrawal of all counsel involved in the collaborative law procedure if the collaborative law procedure does not result in settlement of the dispute; and (5) other provisions as agreed to by the parties consistent with a good faith effort to collaboratively settle the matter.
Judgment on a Collaborative Law Settlement
The new law states that notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule or law, a party is entitled to judgment on a collaborative law settlement agreement if the agreement: (1) provides, in a prominently displayed statement that is boldfaced, capitalized, or underlined, that the agreement is not subject to revocation; and 2) is signed by each party to the agreement and the attorney of each party.
The Court's Authority
Subject to Subsection (g), a court that is notified 30 days before trial that the parties are using collaborative law procedures to attempt to settle a dispute may not, until a party notifies the court that the collaborative law procedures did not result in a settlement: (1) set a hearing or trial in the case; (2) impose discovery deadlines; (3) require compliance with scheduling orders; or (4) dismiss the case.
The Parties' Obligations
The parties shall notify the court if the collaborative law procedures result in a settlement. If they do not, the parties shall file: (1) a status report with the court not later than the 180th day after the date of the written agreement to use the procedures; and (2) a status report on or before the first anniversary of the date of the written agreement to use the procedures, accompanied by a motion for continuance that the court shall grant if the status report indicates the desire of the parties to continue to use collaborative law procedures. (g) If the collaborative law procedures do not result in a settlement on or before the second anniversary of the date that the suit was filed, the court may: (1) set the suit for trial on the regular docket; or (2) dismiss the suit without prejudice. (Note: it is also important to know that the parties can opt out of the collaborative law process at any time prior to signing an irrevocable settlement agreement).
Collaborative Law in Practice
Central to the Collaborative process is the idea that the parties and their attorneys work as a "team". The "team" may also include neutral experts for any issue that requires specific experts. The attorneys model for their clients an attitude of co-operation and respect that allows the parties, their attorneys, and any neutral experts to share their knowledge, skills, and resources.
The Collaborative law model generally includes the following steps:
Impact on Texas Mediators
Some of Texas' most respected family lawyers have already embraced collaborative law and are frequently practicing it in clusters with other colleagues. However, collaborative law can be practiced by any attorney with the appropriate skills.
Surprisingly, many Texas mediators have reacted negatively to the new trend of collaborative law very much like numerous attorneys reacted to the advent of mediation. Among comments the authors have heard are: that this law would eliminate the need for mediators and that it would negatively impact traditional litigation advocacy roles.
Similar to Impact of the ADR Act
The Texas Alternative Dispute Resolution Procedures Act (Texas ADR Act) states that it is the policy of the State of Texas to encourage the peaceable resolution of disputes. The Act emphasizes family law cases by stating that special consideration be given to "disputes involving the parent-child relationship, including the mediation of issues involving conservatorship, possession, and support of children", as well as the early settlement of pending litigation through voluntary settlement procedures. Similarly the Family Code encourages the use of ADR by requiring that an ADR statement be included in the first pleading filed by the parties in several proceedings under the Family Code.
I am aware, that it is the policy of the state of Texas to promote the amicable and non-judicial settlement of disputes involving children and families. I am aware of Alternative Dispute Resolution methods including mediation. While I recognize that Alternative Dispute Resolution is an alternative to and not a substitute for a trial and that this case may be tried if it is not settled, I represent to the court that I will attempt in good faith to resolve before final trial contested issues in the case by Alternative Dispute Resolution without the necessity of court intervention.
Collaborative Law is in effect an Alternative Dispute Resolution method and is faithful to the ADR Act's and the Family Code's policy of peaceful resolution.
Since the enactment of the ADR statute there is a growing body of evidence, that some families want a save environment in which to work out their own unique solutions without judicial intervention. The practice of Collaborative Law not only incorporates the strengths of both the conference and caucus models of mediation but also addresses their potential weaknesses. For example, attorneys are involved from the beginning of the negotiation sessions in a cooperative mode similar to mediation rather than waiting until the eve of trial when positions are more solidified. The high costs of discovery and experts can be avoided by the use of full disclosure and hiring of mutual experts.
Does it Eliminate the Need for Mediators?
In practice, many of the attorneys who practice collaborative law are also mediators who prefer collaboration to litigation and who believe collaborative law is a positive step towards creating a less contentious culture among lawyers and their clients. It is unlikely that the new law will negatively affect those attorney mediators who also practice family law. On the contrary, Collaborative Law is likely to become the divorcing public's preferred method of representation.
These attorney-mediators will also be able to use their mediation skills in the furtherance of the spirit of the Texas Alternative Dispute Resolution Act. Attorney-mediators have often felt frustrated that, once they assumed the role of mediators, they were not able to represent or advise parties because of a conflict of roles. In some cases there is no need for an extra layer of expense. Therefore, collaborative law offers the best of both worlds in those cases and attorneys can represent their clients' interests and at the same time promote the process of resolution at an earlier stage.
There is a chance that Collaborative Law may decrease the need for family mediators. However, mediators will still be needed when the parties do not reach settlement. Also the parties may have important relational and emotional issues and could benefit from mediation before embarking into the resolution of legal issues.
Does it Eliminate the Need for Aggressive Lawyers?
The reality seems to be that there will always be demand for aggressive litigators. As long as there are rancorous litigants and powerless parties there will also be the need for litigators to represent them. These will continue to benefit from mediation.
Texas requires that divorcing spouses try mediation before going to trial. Spouses can request a jury trial, but generally a judge decides the trial rather than a jury. Mediation is an ideal way to prevent the element of surprise that comes with taking a divorce case to trial. Many judges will tell you that a divorce trial has no winners, because the outcome is rarely in favor of just one party.
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