In 1990, attorney Stu Webb in Minnesota conceived of a new way to practice family law. He simply determined that lawyers could agree to work together in resolving conflict using a cooperative rather than adversarial strategy and the Collaborative Law concept was born. His colleagues grafted on to the idea and the very first Collaborative practice group was formed.
The 2016 Florida Legislature created the Collaborative Law Process Act and the governor signed it into law on March 24, 2016. In order to appreciate the significance of this event, I think back to April 21, 1999, and my attendance at the Family Law Section meeting of the American Bar Association in Miami Beach, Florida. Of the many presentations offered, the one titled “Collaborative Law” piqued my interest. As I look back to that day and juxtapose it next to the day the Act became law, 17 years later, I am satisfied that many more parents and their children will greatly benefit from the efforts made during that time.
The Collaborative Process is now voluntarily chosen by clients to resolve the issues in their cases without going to court. Families have been able to learn better communication skills and protect their children from the collateral damage, stress, conflict and uncertainty of a harsh, drawn-out divorce. It allows the divorcing couple an opportunity to create their own post-separation parenting relationship. The Collaborative team, comprised of two attorneys, a neutral mental health and a neutral financial professional have guided the clients in helping them restructure families, address children’s issues and determine the distribution of assets and liabilities without creating catastrophic financial and emotional cost. With the passage of the Collaborative Law Process Statute in March 2016, those efforts will now have a profound effect and hasten the way family law issues are resolved by more and more of my colleagues. The clients and not a judge will determine their futures and shape the direction of their families for the coming years.
The practice of law generally is changing as more and more cases today are resolved through Alternative Dispute Resolution (ADR) methods. In 2008, Julie Macfarlane, then a professor in the Faculty of Law at the University of Winsor, found that the use of negotiation, mediation and collaboration in their resolution of lawsuits drastically changed the role of the lawyer. Client expectations were no longer satisfied with the traditional concept of the lawyer as “rights-based”. Macfarlane found clients today, whether corporate or personal “preferred a more pragmatic, cost-conscious and time efficient approach to resolving legal problems”.
Collaborative Law simply became the latest tool available in the ADR toolbox. The process was crafted to help parties divorce in a civil and respectful manner, without going to court, and is now being used in other civil areas of law. Mediation paved the way for this process to come into being since both models allow the clients to determine the outcome of the case as they focus on the goals and interests of one another using interest-based negotiation.
However, the Collaborative Process differs widely from mediation since collaboratively trained professionals make up a team comprised of an attorney for each client, a neutral mental health professional who functions as a facilitator and, when needed, a neutral financial professional. The neutral financial professional is essential in cases when the marital estate and/or the level of understanding of the financial issues may not be equal for both parties.
The team works together and shares information with one another as transparency is a central aspect of the process. However, the attorney-client privilege is not compromised and remains intact. A mediator may be used though whenever the clients are “stuck in a groove” and the fresh face of the mediator is generally welcomed by the team and the clients.
This voluntary, confidential and private process has a greater than 80% plus success rate. It is a boon to families because the communication skills learned by the parties carry over into their everyday lives and inure to the benefit of their children. Co-parenting is possible to accomplish post-judgment because there has been no rancor or hostility built up by the parties or professionals during the process. I have often seen divorcing parties in litigation lose sight of their children’s best interest as their primary goal. Experience has shown me that parents who choose the Collaborative Process place their children first when stating the goals they want to accomplish. Children are too often adversely affected by the toxicity of their parent’s litigated divorce. Parents who are embroiled in conflict are impaired by their anger and in their ability to communicate effectively, thereby reducing their ability to parent.
The process begins when each party retains a collaboratively trained attorney who explains that she/he is retained only for the purpose of guiding settlement negotiations. The goal of the professionals is to help the parties negotiate a win-win settlement that will work for them and their family. In Florida, once both attorneys are retained, the parties meet with a neutral mental health professional who explains his/her role as a facilitator in the process and the conduct expected of the parties and the professionals in the meetings. Thereafter, the mental health professional contacts the attorneys and the three prepare the agenda for the first team meeting with the parties. All team meetings occur in a conference setting where there is open communication between everyone around the table. There is no prohibition against one client speaking to the other collaborative counsel.
At the first team meeting, the facilitator introduces the team and the parties to one another. The Participation Agreement is reviewed by the clients and when signed by the clients and the team, the Collaborative Process begins. This Agreement binds the professionals and the clients to settle the case without going to court and specifies that the process is voluntary, confidential, private and transparent within the team. Should the case not settle, the professionals must withdraw since the attorneys and other professionals are disqualified from representing the parties in subsequent litigation and cannot be deposed nor testify in an ongoing case. Either party may terminate the process.
One of the important provisions of the Participation Agreement is that no issues will be discussed by the parties outside of the team meeting without the agreement of the professionals. This caveat is to avoid the parties becoming involved in a discussion that could escalate into an unnecessary argument when the team support is not present. Part of the role of the team is to skillfully change the tenor and tone of the parties’ discussion into a productive dialogue to better understand and settle the issues.
Immediate concerns may be discussed and dealt with as necessary. The “status quo”, maintaining assets and liabilities as they exist until the determination of a specific date by the team and clients, may not be changed. Thereafter, the parties’ goals and interests, both immediate and long term, are elicited by the attorneys. Homework assignments are given to the parties that usually relate to all relevant financial documents that must be gathered. The issue of professional fees is discussed and generally all such fees come from marital funds.
The Collaborative Process is teaching attorneys to become peacemakers as they guide their clients through negotiations. There are no threats, no warlike behaviors and no intimidations directed toward the other client or attorney. In the process of becoming a peacemaker, attorneys who have litigated must make a paradigm shift from an adversarial to a collaborative to engage in the Collaborative Process. As a peacemaker, the collaborative practitioner has the opportunity to reconcile parties in conflict and allow the parties to move forward to accomplish their goals. The professionals model behavior for the parties, creating a safe environment to enable and empower the clients to fully participate in determining the outcome of their case.
When needed, a neutral financial professional becomes a part of the team. This person may be a certified public accountant or a financial planner whose responsibility is to review all relevant financial documents. He/she may prepare a statement of assets and liabilities in a marital balance sheet after receiving financial affidavits with supporting documents from the parties. Negotiations for the distribution of the assets and liabilities are conducted by the team and the parties. Brainstorming occurs to find mutual interests and solutions that make settlements possible.
Cases using the Collaborative Process are resolved in far less time than litigated cases. Team meetings last between two to three hours and future meetings are calendared at the end of each meeting. The time a case concludes depends on its complexity but more important is that the case can only “move as fast as the slowest party.” Rarely are both parties at the same stage of readiness to dissolve their marriage. After each team meeting, the professionals debrief the meeting to discuss what happened, what can be learned from it, and what should be done differently next time.
A debrief with the client by the attorney also takes place. It is imperative that the communication between the two be open, so the attorney knows the comfort level of the client, understands the client’s concerns they may have had during the team meeting and listens, ALWAYS LISTENS, to what the client expresses.
The professionals engaged in the Collaborative Process find that the work they provide to their clients is meaningful and beneficial with more positive results. The clients have decided how their assets and liabilities are divided using thoughtful and creative ideas that take their thinking “outside of the box.” The parties’ are empowered in their decision-making, their communication skills are strengthened, and parents have given their children a “good divorce”. Co-parenting is enabled for the children and the parents, family relationships are restructured and the parties have a better chance of moving forward in a positive direction with their lives.