After meeting a new client and determining if the case is appropriate for the collaborative process and whether he or she is interested in doing a collaborative divorce, the next step is to convince the spouse’s attorney to be collaborative rather than adversarial. If the case is appropriate for the collaborative process, I do several things to increase the likelihood it won’t go to litigation. Only in cases with severe family violence, when a couple can’t compromise, one of the spouses refuses to produce documents, or one party insists on going to court, do I recommend the couple litigate their divorce. I believe most couples benefit from doing a collaborative divorce.
Meet with Both Clients. If the case is appropriate for collaboration, I will invite both spouses to meet with me and discuss Texas divorce options. If both spouses come to my office, I ask them to sign a letter acknowledging I don’t represent both parties before I do anything else. Then, I discuss the benefits and risks of collaborative divorce, litigation, a kitchen sink settlement, mediation, and arbitration as ways of resolving their marital dispute.
Sharing Information with the Other Spouse. If only one spouse comes to my office, I give him or her a booklet that describes divorce options in Texas to share with their spouse and his or her attorney. I also compile a list of three experienced collaborative attorneys for the other party to consider engaging. Then I wait to see if my client’s spouse contacts one of the collaborative attorneys. If the other party does engage a collaborative attorney, we meet to discuss the case and set the first joint meeting. If I learn the other party has engaged a non-collaborative attorney, I contact him or her immediately to discuss the case.
Contacting the Other Attorney. I call the non-collaborative attorney to discuss the case and suggest doing a collaborative divorce. During this initial call, I try to assess the attorney’s interest in a collaborative divorce, determine how experienced he or she is at doing collaborative divorces, and inquire whether the attorney and his or her client are willing to consider the collaborative process. If the other attorney is not experienced, but expresses interest in the collaborative process, I offer to mentor him or her outside the collaborative divorce process. During this first call to opposing counsel, I discuss whether the case is appropriate for the collaborative process, whether both clients might be interested in doing their divorce collaboratively, discover if the other attorney does collaborative divorces, and if he or she is trained and experienced in collaborative law.
Is the Other Attorney Adversarial? If the other attorney has no interest in the collaborative process, I don’t try to force the case into a collaborative mold because that rarely works. Doing a collaborative divorce requires a significant shift in mental attitude, and some litigation attorneys can’t make the jump from court house to conference room. If the other attorney and his or her client is not interested in doing a collaborative divorce, I inquire whether they are willing to do an amicable mediator assisted divorce rather than litigation. If they insist on going directly to litigation, I refer my client to a litigation attorney in San Antonio because I only handle collaborative or amicable mediator assisted divorce cases.
Amicable Mediator Assisted Divorce. An amicable mediator assisted divorce is similar to a collaborative divorce, except clients don’t sign a Family Law Participation Agreement, so the attorneys aren’t required to withdraw if the case doesn’t settle. Some collaborative attorneys refuse to participate in amicable mediator assisted divorces because they feel that litigation attorneys advertise collaborative divorces in their office, but actually switch their clients to litigation instead. I personally believe that an amicable mediator assisted divorce is a better option for most clients than litigation. However, it’s true that some litigation attorneys offer collaborative divorces to get clients in the door and then switch them to litigation. When I do an amicable mediator assisted divorce, I insist we engage an experienced collaborative mediator to handle the settlement discussions, since we won’t be holding joint collaborative settlement meetings. All my amicable mediator assisted divorces settled. However, an amicable mediator assisted divorce typically takes longer, costs more, the clients experience more anger, and they have more difficulty co-parenting after the divorce compared with collaborative clients.
Convincing the other attorney to be collaborative can be one of the most sensitive steps in beginning a collaborative divorce. Often, I invite both clients to discuss divorce options in my office, where I explain the benefits and risks of collaborative divorce vs. litigation. Alternatively, I give my client materials explaining divorce options in Texas and a list of three experienced collaborative attorneys to share with his or her spouse. If none of these tactics work, I call the other attorney to discuss doing a collaborative divorce. I offer to mentor him or her if the other attorney is not experienced in the collaborative process. If the other attorney is adversarial and not interested in doing a collaborative divorce, I suggest we do an amicable mediator assisted divorce because I find it’s less destructive of the family compared with litigation. An amicable mediator assisted divorce is similar to the collaborative process, but the clients don’t sign a Participation Agreement and the attorneys need not resign if the case goes to litigation.