Presented by Douglas A. Harrison, Carrie Silverstri, and Norma Levine Trusch.
They outlined the history of collaborative law beginning 27 years ago (yes, it’s really been that long!) when Stu Webb introduced the idea of a collaborative divorce. Texas was the first state to pass a statute recognizing this new form of alternate dispute resolution. The panel defined collaborative divorce as a non-adversarial process where clients work together to resolve their family dispute with the help of attorneys and neutral professionals in a manner that meets their goals and interests. If the case fails to resolve, the collaborative attorneys must withdraw and new litigation attorneys engaged. Either client can opt out of the process at any time without cause. The collaborative process is transparent among the team and clients, but protected from public inquiry.
The panel also differentiated collaborative divorce from mediation by pointing out that many courts require mediation, but collaborative divorce is strictly voluntary. Also, there is no training requirement for collaborative attorneys. Another difference is the important steps outlined in the Road Map to Resolution published by CDT detailing how the process works. Also, collaborative attorneys can’t use the threat of litigation to win a point in negotiation. Finally, mediation usually occurs after months of legal battles over temporary orders and discovery and often right before trial while the collaborative process starts out with cooperation, transparency, and open communication.
The panel noted that collaborative attorneys are required to give their clients informed consent about the risks and benefits of the collaborative process, litigation, early intervention mediation, arbitration, and the kitchen table approach to resolving family disputes.
The panel suggested several practice tips for developing a successful collaborative practice, including continued training, using experienced neutrals, careful screening of potential clients, following the protocols of practice, not overbooking, ensuring full financial disclosure, developing creative settlement solutions, the importance of team communications, not trying to move the process faster than the slowest client, using written agenda, being aware of shadow advisers, and using all avenues to educate the public about collaborative divorce.
Finally, the panel presented the results of a survey taken among CDT members. They reported that the full team model is preferred in Texas, training is seen as helpful and professional, it’s getting more difficult to convince opposing counsel to do a collaborative divorce, the newness has worn off the collaborative process for a majority of practitioners but they are still enthusiastic about the process. A majority reported that their practice is not growing, they experience no difficulty with informed consent, Texas practice groups are seen as generally healthy, and the CDT marketing campaign has been helpful.