The Evolution of Collaborative Law: Cooperative Law

"Collaborative Law" is an Alternative Dispute Resolution technique. In Collaborative law, each spouse pledges to sit down in the same room to pursue settlement of the case in the most cooperative way possible. They vow to keep talking until they reach settlement, and to stay out of court at all cost.

Over the years, the Collaborative law model has sprouted several variations. One of them is "cooperative law." I used to say I would never do a Cooperative Case. For those who don't recognize the lingo, Cooperative differs from Collaborative in that there is no attorney withdrawal provision. I felt (and still feel) that the attorney withdrawal provision encourages clients to stay the settlement course when the case gets difficult.

I also felt that the opposing counsel who wouldn't do Collaborative Law probably wasn't committed to settlement. This is where I was wrong. I'm just completing my first Cooperative case. I must admit that there were moments when I felt uncomfortable. If this wasn't a pure Collaborative case and it wasn't a pure litigation case, what on earth were my rules? I waited for the opposing counsel to race to the courthouse when we had our first problem. It didn't happen. In fact, we settled the case and it was done with very little acrimony, although it was a case that could have been hotly contested.

What I learned is that what matters most isn't the form of the process you are using. It is the integrity of the attorneys and parties involved. In Collaborative Law, a party can opt out and run to the Courthouse at any time. In either Collaborative or Cooperative Law, if you have two parties and two lawyers who are committed to settling, it will happen – with or without an attorney withdrawal provision.

Mediated Settlement Agreements "More Binding than Contracts"

The Texas Family Code includes several dispute-resolution methods. Among them are arbitration, mediation and collaborative law.

When a divorce case is resolved by mediation, the parties and their attorneys sign a Mediated Settlement Agreement. A Mediated Settlement Agreement cannot be revoked if it so provides "in a prominently displayed statement that is in boldfaced type or capital letters or underlined." Tex. Fam. Code § 6.602(b)(1). Toler v. Sanders, No. 01-11-00126-CV (Tex. App. - Houston [1st Dist.] May 17, 2012, n.p.h.).

The Family Code continues:

If a mediated settlement agreement meets the requirements of this section, a party is entitled to judgment on the mediated settlement agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of law.

Tex. Fam. Code § 6.602(c).

Houston's First District Court of Appeals applied these Code provisions to a Mediated Settlement Agreement. The husband claimed that the Mediated Settlement Agreement was supposed to divide one of his two retirement funds equally but that he was supposed to receive 100% of the other retirement fund.

The Mediated Settlement Agreement stated: "Parties agree to award wife 50% of the community property of [husband's] Rail Road Retirement benefits, with a stop date of September 27, 2010."

The trial court signed a judgment based on the language of the Mediated Settlement Agreement.

The Houston Court affirmed the trial court: It held that a Mediated Settlement Agreement is more binding than a basic written contract because, except when a party has procured the settlement through fraud or coercion, nothing either party does will modify or void the agreement once everyone has signed it. (quoting In the Matter of the Marriage of Joyner, 196 S.W.3d 883 (Tex. App. - Texarkana 2006, pet. denied).

Even though the husband claimed that the Mediated Settlement was ambiguous and that there was a mistake about its terms, the Mediated Settlement Agreement was clear on its face and thus was enforced to divide both retirement accounts equally between the parties.