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Dallas Business Journal interviews true believers of collaborative law

By Bill Hethcock

A kinder, gentler approach to divorce got a ringing endorsement recently from
billionaire T. Boone Pickens, who used a process called collaborative law in parting
ways with his fourth wife, Madeleine, late last year.
“Collaborative law keeps everything on a high level and everybody cooperating,”
Pickens said in an interview with the Dallas Business Journal after telling lawyers
about his experience with the process at a March luncheon sponsored by
Collaborative Law Institute of Texas.
A collaborative process — rather than duking it out in court — is used in one in four
divorce cases in North Texas, practitioners estimate. More than half of collaborative
law cases are divorce, but it can be used in other scenarios, too.
Collaboration attracts parties looking for a process that is cheaper, more family friendly
and private compared with litigation. But it’s not for everyone and, some
legal experts warn, can hit the wallet hard if talks dissolve.

Softer than a wrecking ball

While collaborative divorce may sound like an oxymoron, it has true believers.
Family law attorney Janet Brumley of Verner & Brumley in Dallas uses a collaborative
approach in about 80 percent of her cases. She has handled more than 1,000 cases
with the procedure.
Brumley’s collaborative caseload grew steadily for about 10 years since the process
was introduced in Texas in 2000, but has plateaued in the last three or four years,
she said. She conducts training of attorneys and financial and mental health
professionals on collaborative law and wrote a 2004 book on the topic called “Divorce
Without Disaster.”
Brumley compares the dissolution of a marriage to the dismantling of a house.
“Instead of people trying to tear each other apart, (the divorcing spouses) are really
trying to say, ‘We built this house together, we’re going to take it apart together,’”
Brumley said. “Instead of just slamming the wrecking ball into the side of the house.”
The collaborative method works not only for divorces, but for prenuptial agreements,
postnuptial agreements and other cases in which the parties involved want to have a
good relationship after it’s over, Brumley said.
It also attracts people who yearn for privacy, because differences are hashed out
behind closed doors instead of in open court, said attorney Chris Farish of Quaid &
Quaid LLC.
In addition to an attorney for each divorcing spouse, collaborative meetings typically
include a neutral financial professional and a neutral mental health professional. The
lawyers and neutrals are paid by the hour.
Why that combination?
“Divorce is typically the biggest legal issue people ever deal with in their life, the
biggest financial issue and the biggest emotional issue they ever deal with in their
life,” Brumley said.

It’s not for everyone

The best thing about the collaborative approach is that it takes the decision making
on tough issues such as child custody out of a judge’s hands and puts it in the hands
of the parents who will be raising those children, said Mary Jo McCurley of McCurley
Orsinger law firm in Dallas, who estimates that about 25 percent of her cases are
handled collaboratively.
“A judge only has so much time to hear a case and make decisions,” she said.
“They’re going to be making those decisions with a hatchet. With collaborative, you
can do it with a scalpel.”
The outcomes are typically better with the collaborative approach because the
participants rather than the courts control the process, said Vicki James, a Dallas
counselor and therapist who serves as a mental health neutral in collaborative cases.
“Collaborative law is family-friendly,” James said. “There’s still a family after divorce.
You don’t stop being a mother. You don’t stop being a dad.”
On the other hand, collaboration requires the spouses to trust each other and each
other’s attorneys. That can be a hurdle, McCurley said.
“As you can imagine, if you’re at the point of divorce, a lot of people don’t have a lot
of trust.”
That’s one reason the collaborative approach doesn’t work, said Larry Friedman of
Dallas-based Friedman & Feiger LLP. He doesn’t favor the process.
“By its nature, a divorce is adversarial,” Friedman said. “Two people are not getting
along. If these people could get along, they would still be married.”
When the divorcing spouses can’t reach an agreement under the collaborative
process, the attorneys and financial and mental health consultants must withdraw
and the divorcing husband and wife have to hire new lawyers and essentially start
the process over. Friedman said he has been referred dozens of cases in which that
has occurred.
In most of those cases, the reason the collaborative process didn’t work is because
one or both spouses were being dishonest, Friedman said. Unless both parties can
make truly informed decisions, the outcome will not be fair. Rules of discovery and
civil procedure and penalties for lying in court help uncover the truth in divorce cases,
allowing a fairer settlement to be reached, Friedman said.
“There is a cloak of honesty around the adversarial system,” he said. “It encourages
honesty.”
Reducing the toll
From a financial standpoint, a collaborative divorce typically costs about one-third
that of a litigated divorce in attorney fees, according to a survey in American Lawyer.
Brumley and McCurley agree that it’s typically a cheaper route.
So did Pickens, who didn’t use the approach to end his previous marriages.
He estimated using the less combative approach saved him “several million” in legal
fees and other costs. But possibly more importantly, it reduced the emotional toll on
himself and his family, he said.
Friedman, however, said he has handled cases in which the parties spent more than
$250,000 in attorney, consultant and other fees during the collaborative process —
money that was essentially wasted when the case ended up going the traditional
route.
The cost of any divorce varies widely, and typically correlates to the wealth of the
divorcing couple, Brumley said. If there’s not much to split, there’s not much to fight
over, she explained. But for couples with land, houses, businesses, cars, oil rigs and
such, that’s another story.
Drama kings or queens — or those married to one — need not apply for the
collaborative approach, Brumley said.
“If you have just one person who’s attracted to the drama of the courthouse, this
isn’t going to work,” she said.
“We have a saying. Litigation is a right. Collaborative law is a privilege.”

bhethcock@bizjournals.com | 214-706-7125

Apr 18, 2013