MY TOOLBOX

By Jeffrey P. Wasserman, Esq., Accredited Collaborative Professional, jwasserman@sbwh.law #AskAboutCollaborative

My Wife says I have a glazed look whenever I enter a hardware store, looking at all of the different tools.  And she is right.  After all, I am not a handyman, plumber, electrician, carpenter or mechanic and I would have no knowledge what a lot of the tools are for nor would I know how to use them.  I would have the same look entering a store specializing in technology.  I am very grateful that I have found my niche in life as a lawyer, as I would probably have starved trying to make a living doing any of the other things mentioned.

As a Collaborative Lawyer, I have developed my own Toolbox.  It consists of the tools I need to keep handy to practice my skills.  There are no hammers, screw drivers, wrenches or other tools of that nature.  There is a three-ring notebook (yes, I need the physical notebook) housing the following items for my practice:

  1. IACP Minimum Standards and Ethics
  2. FACP Collaborative Process Ethical Standards
  3. Collaborative Law Process Act consisting of §61.55-61.58 Fla. Stat.
  4. Florida Supreme Court Rule 12.745 Fla.Fam.L.R.P. Collaborative Law Process
  5. Rule 4.1.19 Rules Regulating the Florida Bar

These are the minimum tools all Collaborative Attorneys should have in their Toolbox.  For other Collaborative Professionals, you should substitute item #5 for your own professional rules governing your specific practice area.

From these, you will have immediate access to the basic tools needed for participating as a Collaborative Professional.   The notebook, whether physical or stored in your computer or the cloud, should be handy for easy access in your office and should be available for all team meetings as a source for reference when questions arise. 

But, doesn’t the Toolbox feel light containing just these few tools?  Yes, it does.  So, I have expanded my Toolbox to contain the Florida Supreme Court Forms, 12.985 (a) thru (g) Fla.Fam.L.R.P.  In addition, when I find appropriate forms I have used with others in my different Collaborative cases, I have added a copy of those forms, as well.  They are there for easy reference for when I commence a new matter and the Team need to select the required Participation Agreement and other preliminary forms suggested for use in commencing the Process. Suddenly my Toolbox is expanding.

Of course, I have my Retainer Agreement and Addendum for when the client elects to use the Collaborative Process for their case.  All other professionals should have their engagement letters and any preliminary forms they use in commencing the Process in their own Toolbox.   

I do not rely on the compilation of forms to be the final drafts of forms to be used.  I am always finding that there are people who have built a better mousetrap than I carry in my Toolbox.  I have no pride in borrowing and modifying my forms to make them better.  And neither should you.   As Collaborative Professionals, we should all work together to make us better at what we do, so we are able to better represent our clients.

Understand, that this article is drafted for those who practice in Florida.  Each state has its own Statutes and Rules and laws that govern the way the Collaborative Process is conducted.  You should merely substitute your own state’s laws to your Toolbox, always making sure you have the IACP Minimum Standards and Ethics as the first thing in your Toolbox. This article may come off as very elementary and for most of you, I hope it does.  If I have reached anyone in suggesting tools for their individual Toolboxes, then writing and sharing this article has been worth it.  Finally, please add those essentials you feel should be in your own Toolbox that have not been listed herein.  And share your thoughts with other Collaborative Professionals as I have done here

After Covid-19: Now What?

After COVID-19, spouses under stress should consider using the Collaborative Process to resolve their marital disputes.

by:  Robert J. Merlin, Esq.

The Law Office of Robert J. Merlin, Esq., rmerlin@merlinlaw.com

The COVID-19 pandemic has forced people to live in close quarters under stressful circumstances. Sometimes, that will lead people to decide to get divorced. If you are thinking about ending your marriage, here are some things you should know.

Getting divorced should be the last resort. The first place to start is to talk with your spouse about what is bothering you about your relationship. That could be a difficult conversation many people are not willing to have, but it is the fastest and least expensive choice. If that does not work, there are therapists who can help you and your spouse to discuss the problems you are having. The investment of that time and money can possibly save your marriage.

If you still want to end your marriage, you should know your choices for handling your divorce. Most people only know about fighting in court, but there are other ways to address the problems in your marriage.

Sometimes, simply entering into a Postnuptial Agreement is enough to calm things down. This type of agreement enables the couple to agree how to handle things if the marriage ends, such as how to divide assets, how much alimony and child support will be paid and how the family members will live together. This choice is not for everyone, but it may be an inexpensive way to resolve your differences with your spouse.

You can negotiate a settlement with your spouse. If you have minor children, you will need to agree how to make decisions about their education, medical care, religious upbringing and extra-curricular activities. You will need to decide how to share time with the children. You can agree to any timesharing system that you and your spouse feel is in your children’s best interest. You will also need to decide how to divide your assets and liabilities and you will need to decide whether one of you will pay alimony to the other. You need to decide how much alimony will be paid and for how long. Once you and your spouse sign a written settlement agreement, one of you must file a petition in court to ask a judge to approve your agreement and to dissolve your marriage.

If you cannot negotiate a settlement with your spouse, you can use a mediator to help you settle everything. A mediator is a neutral person who will help you and your spouse negotiate a settlement. The mediator cannot give you or your spouse any legal advice but can suggest ways to settle your differences. Using a mediator can be relatively inexpensive and can minimize the arguments you have with your spouse, but unless you have an attorney during the mediation, you may not know what the law is and what choices you have to resolve your differences with your spouse.

You can file a divorce action in court with or without an attorney. Once you file in court, children, family, friends, co-workers and competitors can see the details of your divorce. When you file in court, you empower a judge to make decisions for your family. The judge does not necessarily have the education, training or experience to know how to resolve differences in the best interest of your family. A judge must make decisions based upon laws, rules and appellate decisions, so the judge does not have the flexibility to be creative in resolving contested. Typically, litigating in court is the most expensive way to get divorced. Sometimes, the attorneys fight each other, and some attorneys have been known to cause more problems than they resolve. It is difficult to get hearings before a judge, especially now. Some courts in Florida are closed, but you may be able to get hearings that will be handled by phone or Zoom.

Perhaps the best way to resolve differences with your spouse is to use the Collaborative Process. The Collaborative Process is a private way for couples to negotiate everything related to their divorce with the help of a team of experts. Everything done in the Collaborative Process is private, so no outsiders should know what is happening until simple papers are filed in court. Instead of family attorneys fighting each other, Collaborative professionals work together to help the couple determine their future and the future of their children. This makes sense because you and your spouse should be in the best position to determine what is in your family’s best interest, as opposed to a judge making decisions for you.

            The distinguishing characteristics of the Collaborative Process are:

  • You have the freedom to create a settlement that meets your family’s needs, rather than a judge dictating that to you.
  • There is a constant focus on the best interest of the children. We use a neutral mental health professional as a facilitator or child specialist. The Collaborative Process is the only process where such an expert is part of the team to help your family. The facilitator helps the couple focus on resolving their differences, rather than battling each other.
  • Each party has their own attorney, who is specially trained in the Collaborative Process. The attorneys do not work against each other, as in litigation. They work together to help you and your spouse settle everything.
  • When appropriate, a neutral financial professional is used. This is important when there are significant assets and income or complicated financial issues. In litigation, each party’s attorney usually retains their own forensic accountant, thereby doubling the cost of a financial professional.
  • The Collaborative Process is confidential and privileged, so no one should discuss what happens during the process with anyone else. Information and documents are voluntarily exchanged, and the couple commits to transparency. There is no need to go to court to ask a judge to order someone to produce a document or to provide information.
  • The couple and professionals meet together. As a result, the Collaborative Process should take much less time than litigation.
  • The Collaborative Process is voluntary, so either party can terminate it at any time, but if they do, the attorneys cannot represent them in contested litigation against each other.  The termination of a Collaborative matter is rare, with approximately 90% of Collaborative matters in Florida resulting in a settlement.
  • Few people who have used the Collaborative Process ever return to court after obtaining their final judgment. In litigation, it is very common for one of the parties to return to court, thereby causing more conflict between the couple.
  •  

The goal of every couple getting divorced should be to resolve their differences as quickly as possible, always focusing on the family’s particular needs. Florida Statutes Section 61.55 states:

“It is the policy of this state to encourage the peaceful resolution of disputes and the early resolution of pending litigation through a voluntary settlement process. The collaborative law process is a unique nonadversarial process that preserves a working relationship between the parties and reduces the emotional and financial toll of litigation.” (Emphasis added)

Attorneys have an ethical duty to ensure that their client makes an informed decision about their matter. This includes explaining the options for handling their divorce and the advantages and disadvantages of each option. Most family attorneys only talk about litigating and possibly mediation. Very few discuss the Collaborative Process. Before meeting with an attorney, you should ask if they use the Collaborative Process. If the attorney does not use the Collaborative Process, you should consider consulting with an attorney who can provide the Collaborative Process to help you resolve your differences in a peaceful, respectful and private way.

Avoid The Shadows: Choose Collaborative Law To Divorce

by: Brenda B. Shapiro, Esq. 

The Florida Probate and Family Law Firm, brenda@flpfl.com

One hundred years ago, when I was a little girl, (litigation has aged me) on Sunday night, my family would gather in the living room around the radio (I said one hundred years) to listen to our favorite program, “The Shadow.” Hear low murmuring organ music, and a resonant male voice asks, “Who knows what evil lurks in the hearts of men?” Crescendo, crashing chord. “Only the Shadow knows!” Not only did he know, when he had to expunge those evils, he always knew exactly what to do. How haunting.

Today, as a family lawyer, I am still haunted by the Shadow. Now, however, the Shadow is not always successful, just schooled by life’s experiences and eager to share those experiences with my clients. You know who they are. Your friend who had a bad divorce. Your sibling, who never really liked your spouse. Your parents who only want what is best for you and who have a very clear idea of what is best. Each has advice that is freely given. Each is there for you. The problem, of course, is none of your shadows is you.

Collaborative law offers you an alternative, an alternative that brings light and understanding as you walk the unfamiliar path to divorce. No shadows here. There are four professionals selected to assist you along the way. Each professional has training and experience in the collaborative process to help you make the important decisions you must make.

Start with your family lawyer, a lawyer specifically trained in Collaborative Law, who will collaborate with your spouse’s collaboratively trained lawyer. Your Lawyer explains the law to you and tells you the options you have within your state family statutes. The written law often says “may” rather than “shall.” You want to understand what you may do under the law. The two lawyers select an MHP, a mental health professional who facilitates the collaborative process for the team and helps you draft a Parenting Plan if you have children. The fourth member of the team is the Financial expert who helps you decide what to do with the assets and liabilities you have acquired, the “stuff” of the marriage. You and your spouse are at the center of the team, setting the agenda for the meetings, and addressing the issues that matter most to you. At the end of each meeting, you accept a task to complete for the next meeting. The six members of the team meet every three weeks until there is an agreement resolving the issues that need to be resolved during the divorce process. When you reach your final agreement, then and only then do you go to Court and give the Judge the agreement. He or she asks if you are a resident of Florida, is your marriage irretrievably broken, and did you sign the agreement voluntarily. You answer, the Judge tells you your marriage is dissolved and wishes you well. Your day in Court takes about fifteen minutes. The Collaborative process usually takes six to eight months instead of the twelve to eighteen months it takes to litigate your case. Yes, time is money.

What holds you together during the process? The fact that it is all confidential. No member of the team, not you, not your spouse or anyone of the four professional members of the group, can talk about your business, your dissolution of marriage, outside of the team. You sign a binding contract that says that. Your best response to your shadows when they ask, and they will ask is, “Thank you for asking. I know you want to help, but I am working on it with a professional team, and the best help you can give me is to trust me to help myself.” 

Communication in Collaborative Divorce: It’s Not What You Said, It’s How You Said It, It’s How I Heard it, It’s How I Interpret It

by Rosemarie S. Roth, Esq. and Lana M. Stern, Ph.D. Florida Collaborative Trainers, www.floridacollaborativetrainers.com

Communications are a critical component in the Collaborative Process.  It should be so simple – I say something, you hear it – everything is fine! So what can go wrong? Just about everything!  Communication is so central to everything we do, think and feel that we hardly give it a moment’s pause. It is comprised of many parts – spoken and written language, body language, cognitive distortions (how we interpret what we hear and see) and more.

The Collaborative Process helps educate divorcing spouses on the tone and content of information being shared and how to actively listen and respect another person’s point of view.  Tone and inflection of spoken language are among the key components of verbal communications. Nonverbal messages are transmitted by facial expressions, eye contact and positions, physical touch, dress, posture and even the physical space between people. Written language lacks these nuances and is open to interpretation by the reader.  Our gestures and body language transmit more than what we say or mean. Cognitive distortions describe how we interpret what we see, hear and say since they are automatic and unconscious reflections of our own biases and experiences (people are notdeliberately misinterpreting).  We filter out what we don’t want to hear, see things as “black or white,” jump to conclusions, catastrophize, personalize, blame and label. Mix in cultural diversity, and it becomes immediately obvious just how complicated communications can be. Consistent verbal and non-verbal communications can help a divorcing spouse send the “real” messages that we mean to convey and enhance understanding of one another.

In the Collaborative Process, commands, critical language, moralizing, threats and name calling will immediately shut down a dialogue. In the Collaborative Team meetings, if distortions occur, a reset permits the divorcing spouses to achieve equilibrium to be able to listen to each other. Honest, open communications between the divorcing spouses and the Collaborative Team will enable effective dialogue to reach a meaningful settlement.

COMMITTEE CONSIDERS COLLABORATIVE LAW AS PART OF FAMILY LAW CERTIFICATION

Originally posted by the Florida Bar

By: Gary Blankenship

A request from multiple past chairs of the Family Law Section to include collaborative law questions on the annual family law certification exam is getting a favorable response from the Marital and Family Law Certification Committee.

However, the request came too late for the next family law certification exam, which is scheduled for March.

“My immediate thought was ‘Yes, let’s absolutely put it in there,’” said committee Chair Jennifer Ficarrotta. But she added another committee member reminded her the committee has already posted a study guide, which doesn’t include collaborative law materials, for the upcoming exam.

“One of the things that is so hard about the family law certification exam is there is so much to cover,” Ficarrotta said.

To deal with that, “you can go on The Florida Bar website and it will give you a list of the topics and subtopics and the statute numbers to study,” she said. “I do know people who print that out far in advance and start to study.

“We could have drafted it [collaborative questions] on the test, but it isn’t already part of the study materials. We wanted to be as transparent as possible for studying.”

Ficarrotta, whose practice includes collaborative law, said she didn’t see any problem for including the subject on the 2022 exam.

That’s fine with Miami attorney Evan Marks, the 2004-05 chair of the Family Law Section who spearheaded the petition signed by 19 other past chairs going back as far as 1984-85.

He said the Legislature approved collaborative practice laws, in F.S. Chap. 61.55-58, in 2016 and the following year family law procedural rules as well as Bar rules were amended to accommodate the statutory changes.

Collaborative practice has only grown since then.

“We have an ethical duty as lawyers to advise clients on all available methods of resolving disputes,” Marks said. “Particularly now when you’re board certified and call yourself a specialist, you better know about the statute and how it works.”

Collaborative law differs from contested litigation in that the parties sit down with their lawyers and neutral experts, such as accountants and mental-health professionals, to work out an agreement. Unlike mediation, several sessions will be scheduled but each no longer than two hours to prevent the parties from being overwhelmed.

“The parties themselves conduct the discussion on what issues are important to them. It’s party driven and interest based,” Marks said. “We are able to get to the meat of the matters.”

It also offers more confidentiality and privacy for clients.

While its use is growing, “Collaborative family law is not going to replace litigation,” he added. “There are cases that are still going to be litigated and judges will have to make decisions. What it does do is it takes a lot of cases that shouldn’t be litigated out of the system.”

The rising interest in collaborative law, Marks said, is shown by the formation of the Florida Collaborative Family Law Institute and the Florida Academy of Collaborative Professionals. The former offers a listing of lawyers, financial professionals, therapists, and others in Southeast Florida who can help clients who want to try collaborative law. The latter is a statewide association of lawyers and mental-health and accounting professionals who are promoting the collaborative method for marriage dissolutions and seeking ways to expand it into other areas of law.

The support of the past section chairs, Marks said, shows how far collaborative law has come in a few years.

“It really makes a statement when you have people of the stature of these family law practitioners,” he said. “A lot of them have been practicing for 25, 30, or 40 years.”

Other former chairs signing besides Marks were Brenda Abrams, Ira Abrams, Renee Goldenberg, Deborah Marks, Ky Koch, Jeffrey Wasserman, Norman Levin, Caroline Black Sikorske, Richard West, Allyson Hughes, Scott Rubin, Peter Gladstone, Diane Kirigin, David Manz, Norberto Katz, Maria Gonzalez, Nicole Goetz, Abigail Beebe, and Amy Hamlin.

Getting To Maybe

by: Brenda B. Shapiro, Esq. The Florida Probate and Family Law Firm, brenda@flpfl.com

            Clients often look for specific qualities when selecting their family lawyer. Some want a bulldog who will fight for them, preferably a pit bull. Some want a hand holder or a lawyer who holds your hand while gently punching opposing counsel with the other. Most want a smart negotiator who will outsmart the other side. When we studied family law we were taught litigation skills and in the third year of law school, when we had the most electives, some of us looking for an easy credit and a practical study, signed up for alternate dispute resolution. The class promised to teach us effective negotiation skills. The textbook was Getting to Yes by Roger Fisher and William Yury the gurus most of us chose to follow.

            Collaborative law doesn’t value pit bulls. Those skills are antithetical to collaboration. Nor does collaborative practice value the punching bag approach, no matter how gentle. Collaborative law values negotiating but it is the client who will do it, not the lawyer. The truly collaborative lawyer values getting to maybe. Therein lies the most significant difference. Negotiating assumes a position. Problem solving  requires exploring options to construct a workable solution.  Problem solving explores “what ifs” and “maybes” and is interest based, not position based.

           Collaborative law is all about problem solving. It is the process that is paramount, not the result and the process requires exploring options. Once you identify the problem, exploring the options you have available to solve the problem assures the best result. As an example, the problem many divorcing couples face , “ What do we do about the house?”  isn’t an “I keep it”, “We sell it” “You buy me out” problem with three possible solutions to negotiate. There are always several options to consider. Start by asking what are the options I have? Which of those options are in my interest? Which of those options are in the family’s interest? Together, the lawyers, the mental health professional and  the financial professional are  there to help you identify the options, the possibilities, and explore together which can work best for you. 

           When you are on an emotional rollercoaster which divorce is, you are rarely  able to negotiate. The collaborative process assures that there are four professionals available to you to help you problem solve and explore your possibilities. And maybe, in the collaborative process you may hear possibilities, options you never thought of…..maybe. Let us help you get there.

Using The Collaborative Process To Resolve Marital Dissolutions in Florida

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

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.

Transitioning From Spouse To Co-Parent In a Collaborative Way

by: Lana M. Stern, Ph.D.
Lana M. Stern, Ph.D., Miami, Florida, lmsternphd@aol.com, www.drlanamstern.com


While a marriage ends an intimate relationship between the spouses, the family relationship continues. The divorced couple’s shared affection for their children forms the basis for a new relationship. New patterns will be created as the family undergoes a “reorganization.” The couple’s relationship becomes one that focuses on parenting the children. The couple moves from an emotional, personal, and informal relationship to a structured, contractual, and more formal relationship.

During the transition of the spouses’ relationship, children require reassurance that they are loved, will be provided for, and are not at fault for the changing relationship. Planning the discussions with your children is paramount to their emotional stability during these changes. Be sensitive to children’s hurt, fear, and pain. Communicate with them openly about their daily lives and how they will change – where they will live, go to school, when, and how much they will see each parent.

The most important indicator of how children cope with a divorce is the relationships that their parents have after the divorce. The spouses in the Collaborative Process model communication skills as co-parents. These parents limit their communications with the children to child-related issues and avoid discourteous remarks regarding the other parent in front of the children (even if a co-parent does not feel the other person deserves it). The mental health facilitator establishes a culture of trust and respect, which enables understanding of the other co-parent’s point of view. A co-parent becomes a guest in the other parent’s home, and arguments, blame, or conflicts are not addressed in front of or in ear-shot of the children. Children should not be placed in the position of “messenger,” “confidant/advisor,” “spy,” “judge,” or the “decider of custody.” Collaborative Team meetings are used to resolve relationship conflicts, with the mental health facilitator and other team members brainstorming or redirecting this behavior into tangible solutions that benefit the parents and children’s relationships.

The introduction or existence of a new relationship with one of the co-parents during the Collaborative Process can add tension in settling marital disputes. A spouse should not involve the children in dating. Children should not become a “confidant” or “advisor,” and any introductions to a serious partner should occur slowly. The Facilitator of the Collaborative Team will work with the other professionals and the co-parents to work through the emotions and tensions caused by the new relationship and minimize the impact of completing the Collaborative Process. The successful Collaborative Process results in strengthened co-parenting that enable the resolution of future parenting issues and creatives a more nurturing environment for their children to succeed beyond the relationship transition of their parents.

When The Professionals Want The Collaborative Process More Than The Clients

To be successful, the Collaborative Process must be valued by the clients and the Collaborative Team.

by: Rebecca H. Fischer, Esq.

Fischer & Feldman, P.A., rfischer@lff-law.com

Four Collaborative cases came to my office in December.  One resulted in the signing of a Collaborative Marital Settlement Agreement, while the second case is now in litigation. The third case was pro bono and went back into the court system, and the fourth case remains a mystery as to its status. I was terminated for not advocating or being positional enough for my client’s liking.  In all the Collaborative cases I have worked on with a team, only one other case ended in litigation.  What went wrong with three out of four of my December cases? Was it the stress of COVID on the families?  Was it me? I was indeed a common denominator in all of them.  Or were these cases that did not belong in the Collaborative Process from the beginning?

In a recent Pauline Tesler webinar, Pauline held the Collaborative Process out as the “golden apple.”  A process to which the client has to earn the right to be a part and aspire to engage.  I never thought of the burden of the Collaborative Process being on the client. I viewed my job as getting the client through the Collaborative Process. The problem with my view of the world has proven to be many fold.  First, I do not know the nature of the other spouse or the attorney to be chosen by the spouse.  Second, I am not a psychologist. I do not necessarily understand the nuances of my client’s emotional issues to know early in the case whether he or she has what it takes to reach for the “golden apple.”  Third, I want to be a Collaborative attorney.  I thought it was my responsibility to encourage my clients to choose Collaborative instead of litigation.

What I learned from the three cases not resulting in signed Collaborative Marital Settlement Agreements was this:  I, along with the rest of the team, wanted a positive outcome more than the two clients did—or at least one of them.  We worked hard and long hours, trying to achieve a positive outcome.  The clients did not work nearly as hard, nor did they “choose” to be Collaborative.  Had I—had the team—recognized earlier in the Process that we wanted the Process to succeed more than the clients, we might have saved them a lot of money and ourselves a lot of frustration and time (none of us billed for all of our time) and the pro bono case was—well—pro bono.  

I have now learned to be more vigilant in screening my cases, listening more than talking, and watching for signs that I am working harder in the Collaborative Process than our clients.  If our clients do not want to settle using the Collaborative Process, the professional team needs to rethink where the matter is going and how we are working within the Process.  If the Collaborative Process is indeed the “golden apple,” then it is a process to be earned not given.  We need to be cautious in moving forward with the Process about which we are so passionate.