Five News Items (and Takeaways) that Show Why Collaborative Law is Especially Relevant During the COVID-19 Crisis
WHAT ARE THE TAKEAWAYS?
- Collaborative law is private and confidential. The parties agree not to go to court, and the lawyers must agree not to go to court, either. In the unlikely event the process does not result in a settlement, the parties can go to court, but they must secure litigation counsel.
- Collaborative puts the clients in control of their case, not a judge. A settlement will only be reached when the parties agree. Collaborative uses interest-based negotiation, not positional bargaining.
- Collaborative is businesslike. The team operates using scheduled joint meetings, agendas, action items and minutes. The meetings are run by a mental health expert, who acts as the process facilitator.
- The parties are in control of the timetable. Settlement is achieved through a series of scheduled meetings that follow a roadmap for settlement. The process is highly structured, unlike the informal settlement process.
- The team approach can help with parenting issues. A full collaborative team consists of the parties, their attorneys, a neutral financial professional (FP), who prepares budgets and the inventory, and a neutral mental health professional (MHP), who acts as a process facilitator. The neutrals are available to assist the parties with budgeting, developing options for property settlement, and parenting plans. However, the attorneys are the only ones who can offer settlement advice.
- When parties choose litigation, they lose privacy. While courthouses have always been open to the public, it used to be that in order to observe a trial, you would have had to dress nicely, take time off from work, and find somewhere to park all day. Chances are, you would not have done so unless you were a friend or family member of the litigants, a student trying to learn more about the trial process, or curious how our legal system worked. Now anyone surfing the Web for any reason can watch your case play out in court. https://www.law.com/texaslawyer/2020/03/17/court-via-youtube-amid-covid-19-closures-texas-judges-ponder-public-access/?slreturn=20200322155137
- Judges make mistakes. Sometimes those mistakes are whoppers. A recent Florida decision involving an emergency room physician is a case in point. Theresa Greene, MD, was briefly stripped of primary custody of her 4 year old daughter after her ex-husband alleged that she was in contact with COVID-19 patients. Medical professionals were outraged, contending that the virus could be an excuse for custody litigation involving anyone on the front lines fighting the pandemic. The decision was later stayed on appeal, but the Greenes not only sacrificed their privacy but a great deal of money by litigating the issue through the courts rather than using available alternatives. https://www.miamiherald.com/news/coronavirus/article241974676.html
- You will be on an uncertain timetable. Many courts are only considering emergency matters right now. Even those that are hearing non-emergency family law matters are doing so via Zoom, meaning in person contact and eye contact will be lost, making the process less personalized. The courts have been hamstrung in conducting hearings. https://texaslawhelp.org/article/court-closures-orders-postponements-and-updated-procedures-due-covid-19 .
- Experts are predicting a rush to the courts when restrictions are lifted. Many psychologists and experts in family dynamics are predicting that, as society becomes more polarized, so are families. Spending time in close quarters may bring some families together, but others will experience more conflict if the relationship was not healthy before. Given the available information on how the courts will handle it, litigation will only exacerbate the polarization. https://abcnews.go.com/US/surge-divorces-anticipated-wake-covid-19-quarantine/story?id=70170902
- Co-Parenting is especially important during this time. Children can easily be victims of the parents’ stress, whether it is over money or being confined in close quarters. It is important to choose a process that places their needs first. https://www.sdflaw.com/news/detail/tips-for-co-parenting-during-covid-19