Transcript

Jennifer Hargrave: When we go into mediation with a flexible mindset willing to look at different options, we’re much more likely to reach a better resolution.

Voiceover: You’re listening to the Texas Family Law Insiders Podcast. Your source for the latest news and trends in family law in the state of Texas. Now, here’s your host, Attorney Holly Draper.

Holly Draper: We’re excited to welcome Jennifer Hargrave from Hargrave Family Law to the Texas Family Law Insiders Podcast. Jennifer is committed to helping good people in broken marriages using strategic solutions throughout the divorce. She’s Board Certified in family law and is an active advocate of collaborative divorce. She’s a member of the Texas Academy of Family Law Specialists, the Dallas Bar Family Law Section in Collaborative Divorce, Texas. She’s been frequently recognized by her peers with an AV Preeminent peer rating. She’s also repeatedly made the lists for Texas Super Lawyers, best lawyers in America, and D Magazine’s Best Lawyers in Dallas. Thank you for joining us today, Jennifer.

Jennifer: Thank you for having me, Holly, I’m happy to be here.

Holly: So can you give us a little bit about your background and how you got started in family law?

Jennifer: Yes. Listen, when I was in law school, there were all kinds of shootings in family law happening at the courthouse and I was determined the one area of law I was not going to do is family law. So I didn’t start off wanting to be a family lawyer. I was you know, happy to stay steer clear of that. So I went into civil law and ended up actually working in house counsel for a big broker dealer in the financial services industry that was then bought out by a big bank. And, and it was soul crushing work for me. It was so boring. I just was dying. And so I had a colleague and I have a friend, I had a friend who was a mediator here in Dallas, her name is Gay Cox.

And so I was looking to make a change. And I, I took Gay out to lunch. And I had read an article she wrote about collaborative law, I’d never heard of this before. And I felt like when I read that article, the skies parted. And you know, the voice of God beamed down on me. It’s like this is it. And so I just felt such peace and motivation. And I was so excited to learn about collaborative divorce. So I went to a training that was done by Janet Brumley here in Dallas. And it was fabulous. And I developed some really key core friendships with other people who were in the training. And that was really my entry into family law was through collaborative divorce.

Holly: I had a similar start where I started out in civil litigation too, and never intended to get into family law and found my found myself there and ended up loving it. And that’s interesting, that collaborative is what got you into family law, because I never even heard of collaborative law when I was first getting started in family law. And it wasn’t until much more recently, that it started to become more mainstream, and become a part of more people’s practices.

Jennifer: You know, I my background was I grew up as the daughter of a clergyman. So I’m a priest kid or pastor’s kid. And you know, ministry was just a part of our lives growing up. And when I read about collaborative law, what I really saw was this hope that there is a way to help people through this incredibly traumatic, difficult time, and help bring true resolution and peace, really, so they can get on with the rest of their lives. And the analogy that I had in the very early days was this really seemed like hospice care for the dying relationship.

And I know that sounds corny, but that’s what that was sort of the the vision that I had for, you know, what a divorce could be that it wouldn’t have to end in total destruction. So, you know, as idealistic back at the time I’ve, I’ve since experienced a lot of collaborative divorces, regular divorces, and high litigated high conflict divorces. And you know, but I still harken back to that vision, I still hold out that hope.

Holly: So for any of our listeners who aren’t familiar with collaborative law, can you kind of explain what that process is?

Jennifer: Absolutely, um, in the collaborative law process, we actually have a statute in Texas, Texas is one of the first states to have a statute that governs the process. And so we’re really innovative in this regard, but in the family law context, and both parties hire lawyers, and they commit to resolving their conflicts outside of the courtroom. So while it’s similar to mediation, and you know, that we’re really looking for conflict resolution, and sometimes it involves mediation, what we what we’re not doing is threatening each other well, you know, screw you, I’m just gonna go see you at the courthouse that because we can’t and the the the thing that makes collaborative law unique and I think makes a lot of lawyers bristle at the idea of doing collaborative law is what we call the collaborative commitment.

And the collaborative commitment requires that if the parties are unable to resolve their dispute in the process, then they have to fire their lawyers and start all over, they have to go hire new litigation counsel. And what was discussed in the collaborative process cannot be used as evidence is protected, just like any other alternative dispute resolution process. So what you know, I totally understand why lawyers bristle at that. But what I really understand is the value of that, especially for my clients, right, because this is about what’s in my client’s best interest. It’s not what it’s about in my best interest. And for my clients, it affords them protection, because we are committing to full disclosure.

So the parties are going to come to the table, in the in joint settlement conferences, these days, we’re doing it over zoom, but they come to the table, and they’re obligated to disclose information, we’re going to share readily share information as part of the process. And you know, I don’t want my clients sitting across the table from you know, Holly Draper Queen of Cross Examination, who’s then going to be able to use all that information she just got about them in the process against them, right, that’s not helpful to the client. What we want to do in the collaborative process is really create a safe place. Because while lawyers are still advocates in the process, and we absolutely are, we don’t, we don’t lay that part of it down. We’re really all working together to find the resolution.

And it’s a dramatic difference in how we show up in the process, because instead of, you know, waging a war instead of being, you know, on the battlefield, which is needed sometimes. So this isn’t appropriate and all times, but really, we’re part of the resolution process. And oftentimes, we involve a team, so we have a mental health professional, is neutral, who will come in and work with the parties, not as a therapist, but really work with them. First of all, in the team meetings to make sure that, you know, we’re being aware of all the emotional stuff that’s going on, because it I mean, this is hard, it’s hard work, you’re sitting there with people who get triggered, you get triggered, I mean, you know, it’s it can be a big trigger fest. So we really need to be aware of the emotions and to help keep it safe for people. But they’ll also work with the parties offline, to help them develop their parenting plan.

And I and that’s one of the things that parties walk away from the process really feeling like, they got a lot of added value out of the process, because they were working with the mental health professional at resolving issues and parent parent parental conflicts during the process. The other person we often use is a financial neutral. And so instead of having two experts, you know, working on the financial case issues in the case, this financial professional will help gather information and help generate options.

And sometimes you know, we have to do business valuation. So we’ll hire a neutral business person. And we do these sessions. Typically they’re two hours we find that’s about the extent people can stand to be in a room with each other under this kind of pressure, and still be constructive, still be able to think clearly and think through issues. And usually we have about three to four sessions, and they’ll do the work offline with the the neutrals, and we come together and craft of final, you know, decree and and then the people go on their ways.

Holly: A lot of times when we mediate through litigation, we can end up with a partial agreement. Is that something you ever see through the collaborative process? And if so, how does that shake out where the collaborative lawyers are supposed to be fired if you don’t resolve the case through collaborative law?

Jennifer: So typically, I mean, is the collaborative process. And I haven’t had any circumstances where people have reached a partial settlement really often for the same reasons why we don’t typically reach partial settlements in mediation, sometimes we do. But you know, just like with mediation, if you weren’t in collaborative, whatever agreements you reach, you know, you can put into a collaborative law settlement agreement, and that’s binding. So it can be as, you know, binding as immediate settlement agreement, and then you would go on and litigate the other issues.

Um, it’s a good question. I haven’t seen it happen. But what I do know is that, you know, it’s not unusual for people to hit roadblocks, where we come to issues that we just can’t settle easily. And that’s the time when we really have to go to the toolbox and we really have to get creative, we have to look for other options. And it is not at all uncommon for people to, to go to mediation and to help get them over that final hump. The other thing that’s really helpful that I encourage my clients to do if they’re having second guesses, you know, I, I often say there’s kind of a there’s an itch to litigate, people have a fantasy idea of what things that was, what is what is going to happen in the courtroom. And so if they, if they have that itch, they’re just unsettled, they don’t feel like you know, they’re ready to sign, then we often will go get a litigation opinion.

And so I’ll contact, you know, litigation attorneys to sit down with them, who would be attorneys that would possibly represent them if the case would opt out. And to really kind of tell them like it is, you know, what’s likely to happen, and help give a second opinion as to the deal that’s on the table. And that’s been very helpful to I think it really helps give people some confidence to move forward in knowing that, you know, this is a good option for them. And of course, if it isn’t, then go hire litigation counsel, you know, and litigate. But in all the years I’ve done it, and all the collaborative cases I’ve done, I, you know, I’ve maybe had two that opted out for various reasons. So I just don’t it just doesn’t happen that often with a good team.

Holly: So you mentioned early on that, you know, not every case is right for collaborative law. So as attorneys, how can we recognize when a client might be a good fit, or when the parties might be a good fit, and when we should be steering more towards litigation?

Jennifer: You know, first of all, I think that has a lot to do with your experience as a collaborative attorney, and to know whether or not collaborative is a right fit for you. I’ve seen incredibly complicated, difficult, nasty cases that would have taken years in a high conflict setting, get resolved in collaborative divorce because of the skill of the team. And so for me, one of the biggest factors is, you know, who’s going to be representing the other side? Do they believe in collaborative divorce? Is this you know, is this something that they are going to be able to help their client do? Or is that a term, that attorney and I are going to be able to have frank and open conversations and give each other feedback? Because at the end of the day, you know, you really have to set your own ego aside, in order to really help find the best solution for clients. And that’s what it’s all about, in my opinion.

So you know, one of the first things I look at is who are the other professionals involved? And because honestly, there are just some lawyers who will never do collaborative, and that’s okay. Not everybody needs to do collaborative, and if it’s not your thing, that’s okay. If you’re curious about it, and you’re interested, and, you know, let’s and the other lawyer does a lot of collaborative have a conversation about it about why it might be good. So I start there, that’s where I start, because I don’t want to just say, well, if you have this type of client, it’ll never work, I think with the right team, almost any kind of case of work, obviously, if there’s domestic violence, that’s, that’s one of the huge red flags. And if there has been a history of abuse in the relationship. And, you know, that’s one that I would, I would not necessarily recommend for collaborative divorce. I say that with some hesitation, because we also know how traumatic family violent cases are in litigation.

And so if you have somebody who you know, I mean, it, it is possible, I wouldn’t rule it out all together, it is possible that you can put the proper precautions in place to help somebody. So I keep an open mind. But what I want to see in my client is somebody who’s focused on the big picture, somebody who knows and understands the value of, of resolution of closure of getting through this phase in their life, and is willing to let go of the hurts and the resentments. People don’t always start there. But if you know, there are glimmers that they’re going to get there, then that’s somebody who’s going to be a really, really good candidate for collaborative divorce.

And obviously, people who who can see the value in the relationship post divorce, you know, so often we know that divorce is an end the family relationship, it just changes it. And a highly litigated divorce is going to change it in some pretty stressful ways. That’s going to make it really difficult to sit next to each other at the soccer games, right or at the graduation or the weddings, or whatever it is that happens in the future. Whereas I think if we have a process when we have a process that allows people to be heard, that really focuses on their goals and their desires and helps get them in a place where they’re ready to move on to that next step. We just have a completely different outcome.

Holly: You have to commit to collaborative law at the beginning or if you find yourself in the midst of an ugly, litigious, horrible fight. Can you change course in the middle and switch to collaborative?

Jennifer: You can. Yes, you can always opt into collaborative so long as both parties want to do that. And that might happen when, you know, if you’re in the middle of a highly litigious case, and one of the parties decides that they, you know, their lawyer is the one who’s really driving the conflict. And they decided to change lawyers if they were to hire a collaborative divorce attorney. And that certainly could happen. I mean, you know, most collaborative divorce attorneys who really love collaborative divorce, don’t love litigation. So they know they’re not usually the ones who start off with those cases. But you know, the parties can always what I would say, come to their senses, and realize there’s something more important and more valuable than continuing the fight. And yes, they can always opt into the collaborative divorce process.

Holly: So you mentioned a little bit ago about practice groups and I know there’s a big collaborative community that you’re involved with as well. Can you talk kind of about practice groups, what they are, if you need to be in one, and give us information on that?

Jennifer: Sure. So collaborative practice, groups formed really as a way for like minded professionals to connect with each other to grow their collaborative skills to problem solve issues. They’re made up of lawyers, and the mental health professionals and financial professionals as well. And they’re really these little groups of professionals who really foster and build trust relationships. And for anybody who’s new to collaborative law, I would say, it’s a great way to get connected to join, to join a collaborative practice group to get that mentorship to and also to get referrals. And to know when you when you have a collaborative case that you have people on their side that you can trust, you do not have to be a member of a practice group. So it is just an added benefit. If you want to delve deeper into collaborative law and really immerse yourself in a lot of the training and mindset work that it takes to be a really good collaborative professional.

Holly: If someone was interested in joining a practice group, how would they even find out how to do it?

Jennifer: So if you go to collaborativedivorcetexas.com, that’s a great place to launch your search for practice groups. But also, I think, if you just Google, usually, the practice groups are very geographic centric. So they’re really defined by the area that you’re in, because that’s most of the time you’re going to, you know, be sharing cases in that area. And there are some practice groups that are open and welcome new members, there are others that are a little more tight knit, they’ve been with each other for years, and really cherish that relationship, but I would still absolutely contact those members, if you’re interested in learning more, because they can help guide you wherever you are, wherever you’re located, and how to find a practice group.

When I did the training, we started our own practice group. So we, we were actually the first practice group that had the interdisciplinary professionals join us, and it was great. And, you know, we used to meet monthly and we would have speakers come in, and, and really talk about the issues that were pertinent to the collaborative practice, you know, really building out that part of your business. But also, you know, those skills that it takes to to work with people in the collaborative process.

Holly: Do you ever do the collaborative process in cases that are not divorced? Do you do them in just custody cases, modifications, those type of things?

Jennifer: Yes, it certainly is possible to do a collaborative case, I think in a modification, it can be extremely helpful. One of the things I find is that, you know, look at the issues are simple. The people, you know, their parties are in agreement on everything. We don’t need a full process, right, because they already know what they want. And so sometimes if it’s just a Child Support Modification, and they, you know, know, the dollar figure, we don’t have to go through a whole collaborative process. It really is. The collaborative process is really a form of dispute resolution. So if there aren’t any disputes, then just get it done. Right. But if there are disputes, it is a way to help the parties resolve that.

So the other interesting thing is that it has expanded to be on collaborative law, there are certainly lots of potential for its use and unlike probate matters, you know, when you can bring families together, but also it’s been used in other civil context as well things such as medical malpractice, you know, where where the value there is value to the relationship there is value to maybe acknowledging, you know, fault. So there are there are other areas where it’s being used, and I would encourage people beyond family law to look into how it could be used. Also, employee employer disputes is another area where we’ve, where it hasn’t been used?

Holly: So are there any elements of collaborative law that can be used outside of the collaborative process for those lawyers that are involved in litigation?

Jennifer: Absolutely, I know that my collaborative training has made me a much better lawyer. You know, there are so many skills that you learn in the collaborative training and in in sitting with people, you know, in that process that translate to litigation. So the first thing I would say is collaborative divorce is really based on interest based negotiation. This comes out of the Harvard negotiation project, where we start by asking people, what, what are your interests? What do you want? What are your goals?

Why? It’s the why question that is so important. Because you know, people say, well, I want to keep the house. Okay, well, why do you want to keep the house? Well, I want stability for my children. All right, stability for your children, that’s kind of the goal here. You want to keep them in the same neighborhood with the same playmates, you know, with the same schools got it, you know, then what we do is we move to the next step of okay, you know, what are all of the options, and we just, we get it, I have a huge whiteboard in my office, and you literally sit there and you brainstorm every single option. That’s possible, right? So you know, you do the crazy options. I mean, y’all can keep the house, you know, dad’s in the house, when is his time, mom’s in the house when it’s her time, we’ve sell the house, you know, divided up all of that stuff, have Grandma, buy the house, I don’t know, we will come up with all kinds of options.

And then we go, we gather the information, we need to really evaluate the consequences. And and when we begin to look at the consequences, we can easily rule things out. So you know, both continuing to own, the home is going to create a whole host of problems, who’s going to be required, you know, in charge of maintenance, how’s the house going to be kept up? You know, what, if you’re having the lights on all the time, during your time, and here, I am stuck paying, right we don’t need that creates additional conflict, but the parties get to decide that themselves, they get to really look at what are the consequences here, and then we reach a resolution? Well, that process is not unique to collaborative.

I mean, I use that when I’m preparing a client for mediation, and we’re going into the mediation process, I walk them through that, you know, I sit there and, and help them formulate their why. And you know, when we have when we go into mediation with a flexible mindset, willing to look at different options, we’re much more likely to reach a better resolution. And it’s hard to stay in your creative problem solving mode, though, when you’re triggered. And so another area that I have gotten so much out of in my work in collaborative attending the the continuing education courses, is understanding what happens to our brain under stress, right.

And so, you know, that amygdala goes off, and we can’t access the creative problem solving part of our brain because we are in fight or flight. And so knowing what do you do in that moment, and recognizing that and other people at listen, that kind of information about human psychology, definitely good information to have. So you don’t have to get that from collaborative. But you know, really looking at conflict from a holistic perspective, I think is so helpful and creates really an advantage in litigation as well.

Holly: And I’ve seen the collaborative component of the mental health professional be used in litigation several times, with a lot of success, where the parties are on board with trying to reach agreements, and they want to do what’s best in the best interest of their child. They just don’t know how to get there. And by bringing in that neutral mental health professional to work on the parenting plan, even within the context of litigation, it has every time I’ve seen it led to a good resolution on the kid issues.

Jennifer: You’re exactly right. And, you know, I think one of the side effects of the collaborative movement. And I don’t know, I didn’t practice law before collaborative, but I know that, you know, through the collaborative process I have gotten to know and really connect with so many mental health professionals, and because they are an integral part of the collaborative process, but they are also an integral part of helping families in litigation. And it has that part of it has certainly made me a better lawyer.

And I’m so thankful to those mental health professionals who really have recognized an area of expertise and area of specialty, you know, creating parenting plans and the parenting coordinator role and and even the parenting facilitation role, which is one that is exclusively for litigation, so you know, using mental health specialists to really help us in the divorce process is critical. And that’s, you know, whether you’re in the collaborative or you’re in litigation.

Holly: If you can give one piece of advice to young family lawyers, what would it be?

Jennifer: You know, for me that I consider this work to be a tremendous privilege, we are walking alongside people during one of their darkest times, right? It is a time that is filled with fear. It is a time where there’s so much uncertainty and a lot of times people can’t even begin to imagine what life is going to be like after divorce. But when you’ve been practicing, you know, I know that life after divorce can be great. And I see so many clients, I’ve learned so much from my clients who’ve taught me how to have a good divorce. And that is it is possible. And I always hold out that hope for clients.

If you are new and starting to do this work, you know, keep an open mind and find a professional who practices the way you want to practice. I am so thankful I had mentors early on when I started doing family law. And Janet Brumley was one of those mentors who really showed me you know, how to be a lawyer, how to have a family how to juggle all of that. She taught me the importance of getting in the courtroom, and learning how to try cases because really to be a good settlement attorney to really help your clients get the best outcome. I think it’s really helpful to have that that courtroom experience. And I might not have done that on my own if I hadn’t been nudged in that direction. So I think in the area of family law, mentorship is key.

Holly: I agree 100%. And I think there are so many experienced attorneys who are willing to mentor younger or less experienced attorneys, and willing to help and I’m sure most of them are going to be busy, and you have to be respectful of that. But they want to help they want to help bring up the next generation of great family lawyers behind them.

Jennifer: You’re exactly right, Holly.

Holly: So if our listeners want to find out more about you or get in contact with you, where can they find more information?

Jennifer: Well, of course, they can go to our website at hargravefamilylaw.com. We would love for them to check us out. But also I would love to direct people to the YouTube channel, Hargrave Family Law YouTube channel where we have interviewed a lot of great collaborative divorce attorneys and other attorneys as well about a variety of topics. And just to kind of check out and listen to that, I think is a great resource for anyone who’s interested in learning more about collaborative divorce, or who just has questions about family law practice. We have an absolute excellent episode coming up on third party rights featuring Holly Draper. So that’ll be great.

Holly: When actually, by the time this podcast goes out that podcast will have already aired. But yes. So definitely check out the Jennifer Hargrave Show and it has a different audience and a different point then this show so you can find out a lot of different information then you’ll be able to get on our podcast. So we’re so happy that you joined us today and had lots of great information about Collaborative Law. And I’m excited to try and build that up in my own practice because I’ve really learned to see the value in that. And thank you for being here.

Jennifer: Absolutely. Thank you for having me, Holly.

Voiceover: The Texas Family Law Insiders podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases and handle Family Law appellate matters. For more information, visit our website at www.draperfirm.com