Two attorneys, a CPA, and a Mediator walk into a room…. Sounds like the beginning of a joke, right? However, it is unmitigatedly serious. These four individuals agreed that we could try the case on ten different days in front of ten different judges and get ten different results. The reason this is so concerning to the parties is because this involves their children, property, hopes, and dreams. It is the end of the life they thought they were building together and now, they must go through a process fraught with fear, confusion, and uncertainty where a person who has known them about eight hours – the Judge – will make a decision regarding the rest of their lives.
However, many family law practitioners are starting to believe there is a better way for Florida families to navigate their divorce. Florida has adopted the Collaborative Law Process Act, §61.55 et seq., which provides in part, “[t]he collaborative law process is a unique non adversarial process that preserves a working relationship between the parties and reduces the emotional and financial toll of litigation.” One highlight of Collaborative Law, is that the parties, their collaboratively trained counsel, and other professions involved in the matter enter into a Participation Agreement which ensures that no Collaborative Team member will proceed to litigation with either party should the collaborate process not resolve the matter and the parties ultimately litigate.
Collaborative Law is a process choice. Process choices run the gamut from parties sitting down for coffee together writing out the terms of an agreement on the proverbial paper napkin to lengthy, no holds barred, multi-day trials. While there are many avenues into the Collaborative process, the end result is that both parties retain collaboratively trained counsel. The core team is typically rounded out by a Neutral Mental Health Professional and Neutral Financial Professional. However, there is no limit on who can become involved in the process and join the team. This is truly a “client-centric” approach and the professional team and parties can bring in any other type of professional to assist in the process. For example, a particular matter may call for a child specialist or one party may seek the assistance of a Financial Professional who is not the team Neutral Financial Professional.
I want to be clear that the Collaborative Law Process is not solely for parties who want to hold hands and sing Kumbaya. This is perhaps one of the biggest fallacies regarding Collaborative Law. Many practitioners may wonder how two people who have gotten to the point of ending their marriage would ever be able to sit down together, discuss issues rationally and respectfully, and evaluate different solutions. Whereas other civil litigation has a winner take all outcome; family court is equitable where, absent extenuating circumstances beyond the scope of this article, neither party “wins” all of the assets or child timesharing.
The Collaborative Law Process allows for streamlined discovery. Specifically, the Neutral Financial Professional communicates with both parties to obtain necessary documents and discovery. People are not perfect, and the parties to the Collaborative Process are not always perfect either. However, unlike traditional litigation which can sometimes have long and drawn out disputes regarding hidden assets, protective orders to prevent discovery, and hearings to compel discovery; the attorneys involved in the Collaborative Process are trained to address these issues head-on and assist the client in moving toward a place of acceptance and understanding in regard to the need to freely provide discovery so that any difficult or sensitive issues can be dealt with in a forthright and respectful manner. The professional team helps to create a safe space for the parties to operate within in order to accomplish the dissolution of marriage and resolve all issues presented.
Being able to create that safe space to deal with complex family law issues is another highlight of the Collaborative Process. One example is in the realm of children’s issues. At first blush, it may appear that the Collaborative Process would not be appropriate for a party dealing with substance abuse disorder when minor children are involved. I suggest it is just the opposite. Within the safety of the Collaborative Process, a parent can address the real issues surrounding his or her substance abuse. The team can pause the Collaborative Process and help that party obtain much needed rehabilitation and other services. They can respectfully acknowledge the delicate balance and care that is required when a parent-child relationship needs to be considered in light of a parent’s substance abuse and create a mechanism that does not serve to punish the parent but, instead, provides continuing safe access along the path to sobriety.
Contested family law litigation which leaves lifelong decisions in the hands of a Judge who has known the family for perhaps mere hours, is like rolling the dice in Vegas. If you want to improve the odds of parties adhering to a long-term resolution, a buy-in to the Collaborative Process should prove much more successful than a buy-in at the poker table.