Collaborative Law Spreading Like a Virus

On December 9, 2004, Texas State Representative Toby Goodman filed HB 205 to amend the Texas Civil Practice and Remedies Code to authorize Collaborative Law procedures in civil litigation outside the family law arena. On January 18, 2005, the Board of Directors of the Houston Bar Association authorized the creation of a new Section of the Houston Bar Association called the Collaborative Law Section. The HBA is the first major bar association to establish a Collaborative Law Section, but Dallas is not far behind. The Dallas Bar Association has a newly formed Collaborative Law study group, which is a required precursor to becoming a section of the Dallas Bar Association.The Texas Collaborative Law Council, Inc. was formed in August 2004 as a non-profit corporation by civil attorneys to promote the use of the collaborative process for resolving civil disputes, and to educate lawyers and the public as to the benefits of the process. Collaborative Law also garnered nationwide, mainstream attention in January 2005 when The Today Show, the NBC television morning news program, featured a segment on the positive impact the Collaborative Law process is having on divorcing couples.

Collaborative Law is a method of negotiating the resolution of legal disputes in which all parties and their lawyers agree to keep the case out of court and to be forthcoming with information germane to the negotiation. The court only gets involved to sign the orders required to effectuate the settlement agreement of the parties. Collaborative Law originated in family law cases where both lawyers and clients acutely felt the devastating impact of escalating aggressive tactics in litigation, and sought a new and better way.

In “the old way,” lawyers filed motions and threatened to seek restraining orders. They argued incessantly over discovery issues and withheld documentation until compelled to produce it, in an effort to gain negotiating advantage. Such tactics fanned the flames of already volatile emotional disputes, and increased the financial cost of divorce, as well. Couples, who might have been able to weather a divorce with dignity and maintain a relationship for co-parenting, found the divorce process further estranged and embittered them. It also caused ongoing damage to their children and their financial condition.

In such traditional litigation, lawyers may be motivated by their ethical duty to vigorously represent their clients, or they may get caught up in the competition of beating their opponent, losing sight of the impact the fight is having on their client. Cynics may even argue that lawyers have an incentive to fan the flames of litigation because it causes the legal fees to mount.

In a collaborative case, however, both the lawyers and the parties have a strong incentive to keep negotiations civil and productive. Pursuant to the collaborative law participation agreement, which is a four-party agreement among the spouses and their lawyers, if any proceeding is taken to court, both lawyers must withdraw from the representation.

The lawyers are trained in the collaborative process, and, as a result, most collaborative cases get resolved more quickly than traditional cases, with a concomitant reduction in legal expenses. The couples get experience in negotiating with each other that helps them manage disagreements more effectively after the divorce. They have more control over the outcome of the process, and the ability to keep potentially embarrassing matters private.

Jennifer Tull, an Austin family lawyer and one of the few Texas lawyers who has an exclusively Collaborative Law practice, tells a couple of stories that illustrate just how powerful the collaborative process can be for the clients. She says, “A couple came in just primed for a custody fight over their three-year-old. They were persuaded to use the collaborative process, and successfully negotiated a custody arrangement satisfactory to both of them. A year and a half later the former wife got transferred from Texas to Minnesota. Those parents had established such a good relationship that instead of a new fight, they worked something out where both parents, including the father’s new wife, moved to Minnesota so that they could continue their parenting arrangement. With the collaborative process they avoided not one, but two custody battles.”

Tull also recounts, “One couple, who had a large, complicated estate, hired the two most aggressive attorneys in town to represent them in their divorce. After one week, each spouse had spent more than $30,000 in attorney’s fees. After they learned about and switched to the Collaborative Law process, the entire case cost each party LESS than they had each spent in one week of litigation. They not only preserved their relationship, but also their community estate.”

The benefits of Collaborative Law aren’t limited to the clients, however. Brenda Keen, the Chair of the newly created Collaborative Law Section of the Houston Bar Association, describes how a lawyer can benefit from converting to the collaborative method of practice. She relates her personal experience this way:

“After more than twenty years of handling family cases in the traditional way, I was approaching total burnout. One of my clients, a doctor, dubbed what divorce lawyers do as “damage control.” In one sense, damage control IS what a divorce attorney actually accomplishes in most cases. No one ever wins a divorce. All too often, though, despite my best efforts, that “damage control” came only after months and months of posturing, and after spending hours and hours doing the “make work” that compliance with our formal discovery rules have come to represent. I was forced to spend too much of my time (and my clients’ money) on work that did not really contribute to the substance of the ultimate result in the case.Collaborative Law changed all that for me. Now, the time I spend on a collaborative case is mostly communication with my client, or in four way meetings – or preparing the legal documents that are necessary to document their settlement. I don’t have to play games anymore. I can spend my time on what really matters. Sure, there are still records and documents to be reviewed but review in the context of a meaningful exchange of information, instead of making lists of pieces of paper just to be able to prove it was produced in discovery — or had not been produced.

Texas has been on the forefront of the Collaborative Law movement. Although the collaborative process originated elsewhere, and it is now being used in virtually every state and in Canada, in 2001, Texas passed the first Collaborative Law statute. Harry Tindall of Tindall & Foster, P.C. in Houston, was one of the persons instrumental in getting the statute adopted. He says, “The statute was necessary to protect the collaborative process from the Texas “fast track” requirements of docket calls, pretrial conferences and discovery deadlines. Collaborative lawyers also wanted to give the process clear legal imprimatur and guarantee enforceability of the settlement agreement in a manner similar to the statute authorizing mediation.”

Penetration into the Civil Practice Arena

Now the Texas civil trial lawyers are getting with the program. Lawrence R. Maxwell, Jr. and others have been working with Tindall and Rep. Goodman to get similar legislation passed to include the collaborative dispute resolution process inthe Civil Practice and Remedies Code. Maxwell suggests that the collaborative process should work well in his construction litigation cases, as well as probate, employment and business cases where the parties are motivated to preserve their relationships.

On March 17 & 18, 2005 the Texas Collaborative Law Council (http://www.collaborativelaw.us/) and the Texas Center for Legal Ethics and Professionalism (http://www.txethics.org) will jointly sponsor the first Texas training in the collaborative process outside of family law.

Even the law schools are taking note. The University of Texas School of Law will join with The Collaborative Law Institute of Texas, a non-profit organization boasting 300 members, to sponsor the 2^nd Annual Collaborative Law Spring Retreat starting March 4, 2005 in Austin. For more information, visit http://www.collablawtexas.com. In the fall of 2004 South Texas College of Law offered a Therapeutic Jurisprudence seminar, which explored Collaborative Law and multi-disciplinary techniques to resolve disputes.

To find more resources on the Collaborative Law process and many other trends in developing a less adversarial law practice, visit www.RenaissanceLawyer.com. The Renaissance Lawyer Society is a non-profit organization that acts as a clearinghouse for information and provides a platform for exchange of ideas for promoting a more visionary, humanistic approach to the law. For more information on the Collaborative Law section of the Houston Bar Association, email Brenda Keen at brenda@brendakeen.com. To participate in conversations about Collaborative Law in civil cases, you can join a new Yahoo listserv by sending an email to collablaw-subscribe@yahoogroups.com or contact Jeanne Fahey at jmfahey@mindspring.com for the schedule of a monthly conference call.