I cannot help but think that, if Abraham Lincoln were practicing family law today, he would be specializing in Collaborative Law.  Collaborative lawyers are trained to be peacemakers.   Unless it would be inappropriate, collaborative lawyers always discourage litigation.  We come to the practice of family law with the approach recently articulated by former Supreme Court Justice Sandra Day O’Connor:  “The courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.”  I wish that every lawyer came to the practice of family law with the example of family lawyer Abe Lincoln as their ideal.  It is encouraging to know that every collaborative lawyer I work with does.

I urge anyone considering a divorce to watch this film and consider how the process might be of benefit  to them in a difficult time of their lives.

I have found it to be true that, for my clients who are public figures, privacy is one of the main features that attracted them to collaborative law. All collaborative law meetings are held in the privacy of the attorneys’ offices, at times that are convenient for everyone, and the final agreements are not filed in the public records of the court but maintained as private contracts between the parties. The only losers in this arrangement may be the readers of USA Today and People magazine — certainly not the divorcing couples.

In all fairness, being a family court judge is a difficult job. The dockets are overcrowded, the work days are long, the attorneys are often rude and combative, and the stories of the litigants can be a litany of anger, fear and pain. It is no wonder that many judges are exhausted and impatient and lose their tempers on occasion. Which makes it even more remarkable to find a judge like Brent Burg who never seemed to tire of the job or lose his patience. He will be missed by all of us.

What many couples may not be aware of is that they do not have to rely on the litigation route to get their divorce or other family matter resolved. If they are willing to put their anger and fear aside, there are other routes to resolution available to them. One of them is early intervention mediation. Mediators are neutrals, trained to assist people in reaching agreements. If resolution is reached with a mediator, a family attorney can be hired to do all of the paperwork necessary to finalize their case legally.

In the event that the parties are unable to settle in mediation, they can then hired trained collaborative lawyers to assist them in reaching a resolution. Collaborative law is conducted out-of-court, in the privacy of the lawyer’s offices. Collaborative lawyers have special training in teaching couples to reach agreements on their own, without having to resort to the courts. If needed, communication facilitators and financial professionals can be part of a collaborative team to guide the couple through the process. National statistics on collaborative law show that between 90-95% of all collaborative law cases end in settlement.

Given the backlogs at the courthouse, litigation should be seen as a last resort in most cases. When looking for a lawyer, you should ask if the lawyer you are seeing has been trained in collaborative law. They can then tell you if that approach is appropriate in your case. There will always be cases that need the assistance of a judge or jury to get resolved. Those should be the ones at the courthouse. Not the ones that could be resolved by the parties with the help and guidance of trained mediators or collaborative lawyers.

Later I learned that the story was even more complicated because the non-biological mother had also had a child, and the twins and her child had been living as siblings before the couple split up. The Court of Appeals decision was based on legal technicalities, and from a legal standpoint might be correct. But what about the children? What will be the effect on the twins of suddenly being separated from a person who acted as their parent all of their lives? And what will be the psychological effect on all three children of suddently losing the love and companionship of lifelong siblings? One can only speculate, but I would assume it would be devastating.

Lesbian and gay couples in Texas contemplating sharing parenting roles must understand that Texas law, and the law in most states, probably will not be available to assist them if their relationships break down. I don’t know the statistics, but I would assume that homosexual couples are no different than heterosexual couples whose marriages have a 50% chance of failing. In my experience, collaborative law offers an excellent vehicle for Lesbian and gay couples to reach contractual agreements regarding their coparenting relationships before they commit to having children and, if they have children and their relationship is ending, reaching coparenting agreements after separation. Collaborative family lawyers are trained to assist couples in focusing on the children, and often enlist the assistance of child specialists who can assist them in devising arrangements that work best for them and the children.

In it he says, “As you may know, divorces are often very emotional experiences. It is also true that while generally both parties are at fault for the breakup of the marriage, often only one of the parties recognizes his or her underlying mistakes that led to the breakup. In many ways, it would probably be beneficial to the emotional health of the parties, and the bottom line financially, if one or both of the parties could and would apologize for at least some of the wrongs inflicted on the other party during the marriage.”

This reminded me of a fascinating lecture I heard given by Lee Taft, a former certified trial specialist and graduate of the Harvard Divinity School, at the 2010 Collaborative Law Course sponsored by the State Bar of Texas and the Collaborative Law Institute of Texas. In his lecture, Taft differentiated between “partial” and “full” apologies. In a “partial” apology, he writes, the offending party expresses sympathy for the wronged party, but does not accept responsibility for the event that caused the injury or wrong. He goes on to say that a “full” apology includes the expression of sympathy contained in the partial apology but, importantly, adds an acknowledgment of responsibility. He cites Richard Nixon’s resignation statement as what he calls a “botched” apology — i.e., one that not only fails to communicate the offender’s remorse but creates further harm that can strain relationships and fuel vengence.

Accepting full responsibility may not be enough if the person apologizing is hoping for reconciliation. For that there must be forgiveness by the wounded party, which Taft suggests is only possible when there is what Taft calls “authentically performed repentance”.

When collaborative professionals represent clients who want to repair their marriages or, at least, pave the way for a cooperative relationship after divorce, they need to explore with them whether they are willing to take responsibility for the problems in the marriage and whether they are willing to demonstrate that willingness in making changes that recognize what needed repair in the relationship. If there is any divorce process that offers an opportunity for a healing apology, it is collaborative law, which brings couples together in a dialogue that would be discouraged in the litigation model.

The article goes on to say: “Ilinois Judge Renee Goldfarb said this week that Joseph Reyes may take his daughter to “church services during his visitation time if he so chooses” and that he have visitation rights every Christmas and Easter. Likewise, the order stipulated that Rebecca Reyes always have their daughter on Rosh Hashana, Yom Kippur and Passover.

“Goldfarb refused to bar Reyes from taking his daughter to church as long as no evidence exists that it would harm the child. Although Rebecca Reyes said that contrary religious teachings could confuse the preschooler, Goldfarb avoided doctrinal questions, saying it was not the court’s place “to focus on or attempt to interpret or judge official religious doctrines.”

If the parties had persued a collaborative divorce, they could have enlisted the assistance of a child specialist to advise them on the best approach to handling the child’s religious upbringing. Courts will always throw up their hands when asked to address conflicting interests regarding the exposure of children to religious influences. Collaborative law offers parents the opportunity to view these issues in a neutral and non-adversarial atmosphere, focusing on the best interest of the children of the marriage.