The Florida Supreme Court has long recognized that family law cases needed “a system that provided non-adversarial alternatives and flexibility of alternatives; a system that preserved rather than destroyed family relationships; . . . and a system that facilitated the process chosen by the parties.” In re Report of Family Law Steering Committee, 794 So. 2d 518, 523 (Fla. 2001).
In August 2016, The Family Law Rules Committee and The Florida Bar Board of Governors approved Family Law Rule of Procedure 12.475, which addresses the collaborative law process, and Bar Rule 4-1.19 which governs the attorney’s role in the collaborative process. Both are currently before the Florida Supreme Court for adoption.
Once adopted, Sections 61.55-61.88, Florida Statutes will codify a system of practice of collaborative law to encourage the peaceful and early resolution of disputes through a voluntary settlement process.
The 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. § 61.55, Fla Stats. (2016). The process also provides a method to maintain certain information as privileged that otherwise might be public record, had the parties opted to litigate their dispute within the court system. §61.58 Fla. Stats. (2016).
COLLABORATIVE LAW in ESCAMBIA – SANTA ROSA COUNTIES
In May 2016, the first of many monthly meetings of Escambia and Santa Rosa attorneys and financial and mental health professionals interested in collaborative law, met to discuss launching a collaborative practice group in the area. In July 2016, eleven attorneys, one mental health professional and one financial professional from Escambia and Santa Rosa counties attended a two-day training program on how to conduct a collaborative divorce. Since July, the newly trained collaborative professionals have formed West Florida Collaborative Law, Inc. for the purpose of educating potential litigants that the collaborative process private and conducted in a professional, respectful setting that fosters, rather than erodes the parties’ relationship, is available as an alternative to hostile, expensive, and destructive litigation.
In September, West Florida Collaborative Law, Inc. met with Escambia Family Law Judges to present a proposed administrative order to the First Circuit, which recognizes collaborative law as an additional means of alternative dispute.
WHAT IS COLLABORATIVE LAW?
Collaborative law is a voluntary settlement process that occurs early on in a dissolution or modification action. Depending on the issues, the process may involve a neutral financial professional, but always engages a neutral mental health professional (“MHP”), who acts as a facilitator, the parties, and each party’s collaboratively-trained attorneys. The MHP does not act as counselor or therapist to either party but rather, acts as a neutral facilitator. The facilitator is selected by the attorneys and plays a critical role in the process in leading the parties through the process of identifying their goals and in creating strategies for obtaining them.
Normally in family law, each party locks themselves into automatic positions from the outset: “50/50 timesharing” or “equal division of assets and debts,” and then spends their energy and money litigating a position that may or may not move them towards the larger long term goals. The collaborative process enables the parties to determine the issues that are most important to them through Interest-Based Negotiation, a ‘win-win’ model of negotiation.
Once the parties have retained a collaboratively-trained attorney and have agreed to participate in the collaborative process, each client meets individually with the facilitator. After each client meets with the facilitator alone, the clients meet together with the facilitator. Then the facilitator and both attorneys meet to identify the parties’ issues and to set the agenda for subsequent “Team Meetings” which include both parties, their attorneys, and the facilitator.
Using Interest-Based Negotiation, the facilitator engages the parties in a process designed to identify each party’s objectives or actual interests. It’s the facilitator’s role to assist each client in unearthing the things (interests) that are truly important to the client, as opposed to those things that a client may reflexively feel a need to fight about. For example, does a party really want more timesharing with the children or is their actual interest to pay less child support? Once all interests of both parties have been identified, the parties brainstorm ideas to achieve their identified interests. The process allows the parties to create their own solutions to satisfy those interests that are most important. The parties’ emotional energy (and money) is used to formulate solutions to thoughtfully identified actual ‘interests’ that enhance each of their lives moving forward as opposed to fighting over fixed or reflexive positions that don’t advance the party’s actual interests.
During the course of the normal process, months, sometimes years, are spent in the discovery process, often unnecessarily. The collaborative process does not involve discovery; it is based on full disclosure by both parties. Its success depends on the good faith efforts of both parties and their attorneys. The process is well-suited for dissolution of marriage; paternity, child support, time-sharing; parental relocation; and modification of the prior final judgment, regarding a family law matter.
Collaborative law is not merely an alternative to mediation; it is a replacement to litigation. It is an entirely different process where success is defined by identifying outcomes that optimize each party’s identified interests. Unlike litigation, where a litigant might keep score based on the number of motions granted or denied, by how much money they can force the other to spend, by how long the discovery process can be unnecessarily extended, or even by how long a party can delay resolution to torture the other party, the ‘win’ in collaborative goes to both parties.