The Differences Between Collaborative and Cooperative Law

Collaborative divorce and cooperative divorce are processes by which parties may attempt to resolve their divorce cases by use of negotiation and use of professionals. They are alike in that the processes both attempt to avoid the courthouse with its incidental court appearances, formal discovery and the arbitrary deadlines of the statutes and rules. However, collaborative law and cooperative law differ in important respects.

Collaborative law is codified into the Texas Family Code in Chapter 15. The statute requires that a collaborative family law participation agreement be signed and that agreement must:

  1. Be in a record;
  2. Be signed by the parties;
  3. State the parties' intent to resolve a collaborative family law matter through a collaborative family law process under this chapter;
  4. Describe the nature and scope of the collaborative family law matter;
  5. Identify the collaborative lawyer who represents each party in the collaborative family law process;
  6. Contain a statement by each collaborative lawyer confirming the lawyer's representation of a party in the collaborative family law process.
  7. Include provisions for suspending tribunal intervention in the collaborative family law matter while the parties are using the collaborative family law process; and
  8. Unless otherwise agreed in writing, jointly engage any professionals, experts, or advisors serving in a neutral capacity.

The statute further allows the parties to include other provisions in a collaborative family law participation agreement which are not inconsistent with this chapter.

According to the statute, a collaborative family law process is concluded by:

  1. Resolution of all issues;
  2. Resolution of a part of a collaborative family law matter; or
  3. Termination of the process under other specified terms in the statute or which have been agreed by the parties.

Generally speaking, a collaborative family law process terminates according to the terms of statute by the giving of notice by one party or when one party seeks court intervention.

When a party discharges a collaborative lawyer or a collaborative lawyer withdraws from further representation of a party that attorney may not continue to represent or advise that party.

The parties must comply with some reporting deadlines while the case is pending, but, upon compliance with those reporting deadlines, the court cannot intervene with settings and discovery deadlines until after the second anniversary of the date the divorce case was filed.

Cooperative law divorce is not statutory. It is a term which incorporates a myriad of hybrid options which are usually derived from Chapter 15 of the Texas Family Code and from the experiences of the parties and their attorneys. In nearly every case which has been reviewed by this author, the provision of Chapter 15 which requires the disqualification of the party or parties' attorneys upon termination of the process is included in the collaborative law agreement. The agreements to avoid litigation and formal discovery are usually incorporated into the cooperative law participation agreements. There is, however, in no instance which has been reported, a requirement that the parties' cooperative law attorneys be disqualified upon termination of the cooperative law process.

Initially, there was concern about the enforceability of cooperative law participation agreement, but in In re Mabry, 355 S.W.3d 16 (Tex. App. – Houston [1st Dist.] 2010, orig. proceeding), the court upheld the validity of the parties' "Cooperative Law Dispute Resolution Agreement" and said,

Akin to collaborative law, cooperative law "is a process which incorporates many of the hallmarks of Collaborative Law but does not require the lawyer to enter into a contract with the opposing party providing for the lawyer's disqualification." Smith and Martinez, 14 HARV. NEGOT. L. REV. at 166. "Cooperative law includes a written agreement to make full, voluntary disclosure of all financial information, avoid formal discovery procedures, utilize joint rather than unilateral appraisals, and use interest-based negotiation." Lande and Herman, 42 FAM. CT. REV. at 284. Put simply, cooperative law agreements mirror collaborative law agreements in spirit and objective, but lack the disqualification clause unique to collaborative law agreements.

The court went on further to say that Chapter 15 had no applicability to cooperative law agreements. Therefore the parties could not be guided by the provisions of Chapter 15 unless portions of the statute were included in the agreement. In disposing of the issue of enforceability of cooperative law agreements, the court said in clear wording, "Additionally, nothing in the statute or in its legislative history leads us to the conclusion that the collaborative law statute forbids parties in Texas from entering into cooperative law agreements."

Be careful what you agree to.

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.