Using The Collaborative Process To Resolve Marital Dissolutions in Florida

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by:  David B.  Mitchell, Esq.

David B. Mitchell, P.A., mitchellesq@aol.com

In 2016, the Florida legislature enacted the Collaborative Law Process Act which authorized and detailed the collaborative process as it applies to family law matters. These include dissolution of marriage and related issues, paternity, and prenuptial and marital agreements. The Florida statute added the collaborative process to the available methods of resolving disputes in these areas. As of today, there are various methods through which these disputes can be concluded, including the traditional route of litigation, by means of mediation, and by utilizing the collaborative process. It is up to the parties to determine which avenue will be traveled to close the dispute.

Each of these three methods of dispute resolution has its advantages and disadvantages. One can use the image of a pyramid to describe the litigation process with the judge at the top of the pyramid, the lawyers in the mid-point and the parties and their witnesses at the bottom. The litigation process will typically involve many months of legal maneuvering, delays in securing needed documents and will require a tremendous investment in legal services by the parties. Often, the family’s finances are crippled by litigation. Also, with a ‘win-lose, zero sum-game’ approach, litigation can be damaging to long-term family relations. In mediation, the pyramid is inverted with the parties at the top, the lawyers in the middle facilitating the negotiations and the absence of a judge. There is a new participant: The Mediator. The Mediator shuttles between the parties while working to craft a settlement agreement. Typically, mediation can involve a single, full day of negotiations and can leave the parties physically and emotionally exhausted.

The collaborative process sits apart from either litigation or mediation. Florida statutes define the collaborative process as one without the intervention of a judge and it is governed by a participation agreement signed by both parties. The process involves both sides working with their respective lawyers, a neutral mental health professional and a financial neutral (typically, a forensic accountant), all collaboratively trained, working together as a team to resolve the family law matter. Without the constraints presented by litigation and with more time to resolve the case than that typically available in mediation, the parties can expeditiously gather the necessary information, settle immediate issues, and reach a final settlement in a cooperative fashion. Additionally, the statute provides that collaborative communications between the participants are generally confidential, encouraging open discussions.

The collaborative process to resolve family law issues requires a commitment by all participants to be open and transparent, possessing a willingness to resolve their matter. The result can be a comprehensive settlement agreement that typically only requires the court’s final approval. This new addition to the alternative dispute resolution processes opens the way to settle family law cases without the adversarial nature of litigation or the time-pressure of mediation. Everyone facing a family law matter would benefit by being advised of the availability of collaborative family law and its many advantages.

Dance With Drama

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by: Candice D. Saketkoo, Ph.D., Psy.D., candice.saketkoo@gmail.com

If you find yourself aligning more with your client than you are with your Collaborative Professional Team, are you dancing in your client’s drama? Are you noticing that your client idealizes you while devaluing others? Although such feelings can be alluring and even intoxicating, they can be even more dangerous and destructive.

I recently had three cases in which one of the attorneys was paralyzed by the perceived need to be positional as a means of advocacy. While I could easily recognize the damaging dynamic between the client and respective attorney and how this behavior impeded the Collaborative Process in all three cases, I, the Neutral Facilitator, was tasked with finding a non-threatening approach to discussing this with the respective attorney while remaining neutral.

Rather than focusing on perceptions or anything else that might be considered subjective, I offered my colleague an ear along with a safe place to have a private open dialogue. I concentrated on discussing the observed behaviors and language used. I then explored and discussed with them the obstacles imposed, the resulting increase in conflict among the clients, and the likely detrimental outcome.  Throughout these discussions, I found myself reminded of Section 3.2 of IACP Standards and Ethics,  Advocacy in the Collaborative Process, which provides five different standards of professional behavior:

  • A Collaborative Professional will respect each client’s self-determination, recognizing that ultimately the clients are responsible for making the decisions that resolve their issues.
  • A Collaborative Professional will assist the client(s) in establishing realistic expectations in the Collaborative Process.
  • When the matter relates to the care and support of children, elders, or other dependents, a Collaborative Professional will encourage the client(s) to consider the impact of decisions on the dependents.
  • A Collaborative Professional will consider the impact that the professional’ s experiences, values, opinions, beliefs, and behaviors will have on the Collaborative matter.
  • A Collaborative Professional will avoid contributing to interpersonal conflict of the clients, including when identifying and discussing the clients’ interests, issues, and concerns.

In all three cases, attorneys for one of the spouses did not recognize they were driving the negotiations from one point of view in exchange for their client’s admiration.  Not only did the client’s behavior motivate the attorney to fight more for their client’s position, but it also isolated the attorney from the rest of the professional team without grasping how emotional boundaries were moved or how their client maintained power and control. Such divisiveness and destruction often cause a breakdown in communication among professional teams, opening the door for such clients to divide and conquer.

During a follow-up conversation with one of the attorneys, the attorney admitted to later realizing that she was indeed sucked in by her client and that upon reflection, she also recognized that language she chose to use with the professional team emulated that of her client. With a seeming sense of shame, she stated, How did I not see that?

It isn’t only for the clients that we need to provide and ensure a safe environment, but for the professionals as well. If we as professionals cannot remain a united front with open communication at all times, we need to immediately examine why so that we avoid creating a weakness in the team. We need to ensure that upon advocating for our clients, we are promoting the Collaborative Process.