Collaborative Law: An Alternative Approach to an Adversarial Proceeding

Published: April 2018
By: Victoria Calebrese

This article will provide a brief overview of the Collaborative Law practice and how this process can be used as an alternative to the traditional litigation approach.

Collaborative Law is a voluntary settlement process wherein:

  1. Settlement by agreement is intentionally pursued as the positive outcome of legal representation.

 

  1. The parties actively participate in the negotiations necessary for the resolution.

 

  1. The cooperative practice replaces adversarial techniques in litigation [1]

It is an open and transparent process wherein the parties and all professionals work towards the common goal of resolving the parties litigation in a private, expedited, and positive approach towards resolution. Thus, the collaborative process requires a team approach.  In a family law setting, the team consists of the parties, their counsel, a neutral facilitator and a neutral financial (such as an accountant).  The neutral facilitator, usually a licensed mental health care professional, schedules the team meetings, creates the agendas and summaries of the meetings, addresses disputed issues before they become serious and assists in developing the Parenting Plan in family law cases.   The neutral facilitator identifies the parties concerns, lowers anxieties and focuses on the present and future and not the past.  The financial neutral’s role is to gather the financial information, prepare spreadsheets and cash flow analysis and educate clients if they need help understanding these figures.  The financial neutral facilitates the decision making process by creating various financial options to be considered by the parties.

The goal of the entire team is to advance the interests of both parties. The team focuses on the parties’ individual and joint goals and interests and works cooperatively in obtaining all financial information, explores options and problem solving. This process begins when all participants sign a Participation Agreement setting forth the ground rules and expectations, defining each party’s role, explaining the expectation of confidentially, voluntary disclosure and “opting out” of the collaborative process.  This process can begin prior to a case filing or after a case has been filed.

The process consists of a series of scheduled team meetings wherein all parties attend and follow an agenda. The end goal is to reach an agreement on all elements with good faith participation in this process.

Why does the Collaborative process work?  The collaborative model, unlike a Court proceeding, is private, and the financial information of the parties is not made public.  Also, timing of the collaborative process is controlled by the parties and not a Court docket.  It is a faster process. More importantly, in a divorce setting, the relationship between the parties is maintained and the families are not torn apart.

One key element of the Collaborative Process is the “opt out” provision. In the event a party wants to withdraw from the collaborative process and proceed in the traditional adversarial process in the Court, then the parties’ attorneys are terminated and the parties will need to retain new counsel in order to proceed in Court.  The dismissal of the attorneys is a red herring for some lawyers. Yet, it is this provision that keeps the parties vested in the process.  The attorneys in the Collaborative Law process need to make a paradigm shift from adversarial to cooperative, from past to future, from blame to impact and win/lose to win/win. Although each party’s lawyer is still an advocate for their client in this process and there is attorney/client privilege, it is a difficult line to walk.  In this process, lawyers are educators and problem solvers rather than litigators, pit bulls, etc.  This paradigm shift for attorneys can be difficult to achieve. It takes a seasoned attorney to achieve success in this process.

The Collaborative process does work when the clients want control over the outcome, are willing to jointly participate in a resolution and want to preserve the assets for the family thus making the process less costly than a litigated matter.

Not every case is optimal for the Collaborative process. It takes the right parties and mindset. It is a “everyone play nice in the sandbox approach” versus the “scortched earth” approach.  Where parties have a great imbalance of power or if there is any type of abuse between the parties,  they are not good candidates for the collaborative process.

Florida recently enacted the Collaborative Law Process Act (Fla. Statute § 61.56) which now codifies the Collaborative Practice in the Family law statute. In addition to family law, this model can be applied to other litigation such as wills & trusts, construction law, business partnership, family/closely held business disputes. In my personal experience, I have participated in three (3) cases within the last year which were all successfully resolved using the Collaborative process.  This Process can and does work.

“The Collaborative law process is a unique non-adversarial process that preserves a working relationship between parties and reduces the emotional and financial toll of litigation.” [2]

[1] 2007 International Academy of Collaborative  Professionals

[2] Fla. Statute 61.55

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