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.

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.

by:  Stewart L. Applerouth, CPA

Co-Founder of Appelrouth Farah & Co, stewart@applerouth.com

We are experiencing public conflict through protest at this time in history. Conflict, at times, may be useful and needed, and can bring about positive change.  However, in emotionally charged marital matters, conflict is a negative emotion that rarely creates a positive outcome.  Divorce can cause irreparable harm to relationships that affect the ability for spouses to be civil involving matters that affect adult children or growing children involving their school or social events.

The Collaborative Process can reduce conflict in divorce and enhance the lines of communication through honest discussion.  When spouses are separated and have new significant others in their lives, the Collaborative Process can avoid litigation arising from negative memories and emotions during the marriage.  Such matters may also have complex financial issues involving high net worth individuals, real estate development and rental activities, valuation of business entities and assets, business litigation, and budgeting for adult children.  

I recall a matter having the potential for high conflict from a long separation and complex financial issues where the Collaborative Process was selected. This peaceful and structured process enabled the spouses to work together and amicably arrive at fair outcomes for both of them, even when a spouse proposed a solution to his or her personal detriment.

I encourage individuals who have decided to end their marital relationship, to consider whether the Collaborative Process makes sense for their situation.  Always remember that reducing conflict sustains your emotional wellness and other relationships that endure beyond the divorce.

The Collaborative Process enables parties to decide how to resolve their own issues as they divorce.

by: Brenda B. Shapiro, Esq.

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

Twenty-seven years ago, I became a family lawyer, thinking it meant I was going to get people divorced. It doesn’t. It means I help clients accept change in their family life, whether through the dissolution of marriage, adoption or shared personal partnerships. Collaborative Law, at last, provides a process to do all those life-changing things in a safe, confidential way. When I litigate, and sometimes I still do, it is my task to ask a stranger in a black robe to decide when my client can see his or her children and how much of what is theirs they have to give away. When I take a Collaborative case, I work with a mental health professional who facilitates, a neutral financial expert, and another collaboratively trained lawyer to help couples decide when they see their kids and how much of what they have, they can keep.

The important part of a Collaborative case is you work with a team to help solve complex problems. Each client is an active participant in the problem-solving process because, of course, it is your problem. The professional team is at your direction to bring our expertise in Law and finance to explore your options with you. The mental health professional helps you craft a parenting plan and navigates all of us through this safe harbor, safe because it is confidential, and your privacy is protected.

Best of all, the time it takes to cruise down the unfamiliar river of dissolution is much less than litigating your case, which has you swimming upstream against the tide. The average litigated family case takes twelve to eighteen months as you push against judicial calendars, each Judge having approximately 2,000 cases. Most Collaborative cases are concluded within six to eight months.  Yes, time is money.

You don’t see the Judge until all the work is done, and you have an agreement for the Judge to stamp. In a Collaborative case, the Judge is happy to see you at the very end because he/she appreciates that you and your team have done the work, and the Judge doesn’t have to decide anything. You did it all!

Here is a description of the Mental Health Facilitator’s role in the Collaborative Process and a list of five ideas to use them for an enhanced experience.

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

As the Facilitator in Collaborative Divorce, a Mental Health Professional addresses the multifaceted emotional issues faced by divorcing spouses in arriving at a marital settlement.  A Facilitator’s role is a necessary factor in the successful completion of a Collaborative Divorce.  Divorcing is one of the most emotionally stressful events that an individual or family will experience due to conflicting emotions and changes that occur on multiple levels.  It is for many, a time of loss, which begins with the acknowledgment that the marriage is over and continues as the family recovers, reorganizes, and restructures relationships.  It is both an end and a beginning and holds sadness and hope for those involved.  Mental Health Facilitators enable this transition to proceed between divorcing spouses while minimizing stress and pain. 

The emotional component of divorce is the most potent force that steers the course of the divorce.  There are many ways to divorce; most of them involve painful changes to the family structure often superimposed in hostile, stressful circumstances with long-term financial and emotional consequences. The Collaborative Process offers an alternative, non-litigated, non-adversarial process. Cool heads may best understand and accept the financial implications consequences of dividing up the family fortune or doing what is in the best interest of the children. Yet, a spouse’s emotions can disrupt brainstorming or the ultimate resolution of the marriage. A divorcing couple is empowered to design their unique resolution, and post-divorce familial relationships are enhanced relative to the traditional divorce process. 

The Facilitator understands human behavior and can model good communication skills but is also alert to emotional issues that can potentially derail a negotiation between spouses, including addictions, domestic violence, domestic psychological abuse, shadow people, and power imbalances.  Through underlying relationship dynamics, Facilitators can enable effective interest-based negotiations and open communications between the spouses and that remove roadblocks to settlement. 

As clients, here are some ideas to gain optimal benefits from the Facilitator on a Collaborative Team:

Step One:  Involve a Facilitator from the beginning of the Collaborative Process. Ask for a meeting between the Facilitator and the divorcing spouses before the first Team meeting to create a safe and comfortable communication environment.  The purpose of the Facilitator’s initial interview with both divorcing clients is to get to know them, to understand their dynamics and communication skills, and to understand what their sensitive areas are in their relationship.  The Facilitator’s observations will be thoughtfully considered by the Collaborative Team to structure meaningful agendas and enable an effective Collaborative Process.

Step Two:  Share feedback with the Facilitator regarding the Collaborative Team Meetings or stumbling blocks that you are experiencing.  The feedback received by the Facilitator is helpful to gain insight in a nonconfrontational manner in setting future agendas for the Collaborative Team meetings and to formulate relevant and useful topics of discussion.

Step Three:  Ask the Facilitator questions about how to address sensitive issues or dynamics with the other spouse in the process.  Facilitators are great educators about potential emotional problems that may be triggered by topics raised during the team meeting. 

 Step Four:  Facilitators can also help resolve time-sharing and associated child support issues during the Collaborative Process upon receiving input from the neutral financial professional.

Step Five:  Facilitators are great listeners.  If you are feeling frustrated with any aspect of the Collaborative Process, venting about the issues can be of great relief and can clarify the problem. Once identified, a problem is usually solvable by the Collaborative Team.

The Facilitator can intervene in simple misunderstandings and real crises by helping with problem-solving, creative thinking, and serving as a support system for the divorcing spouses throughout the Collaborative Process. A Facilitator’s neutrality creates a safe place for understanding the underlying currents to be processed before they disrupt the Collaborative Process.  Apply the five ideas with the Facilitator to enhance your experience in the Collaborative Process.