Using The Collaborative Process To Resolve Marital Dissolutions in Florida

by:  David B.  Mitchell, Esq.

David B. Mitchell, P.A.,

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.,

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,,

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.,

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.  

Minimize Conflict Between You: Choose Collaborative Divorce

by:  Stewart L. Applerouth, CPA

Co-Founder of Appelrouth Farah & Co,

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.

Inspiring Adult Interactions: Modeling Behavior Through the Collaborative Process

Collaborative Teams and the Collaborative Process influence spousal behavior and team dynamics through their interactions with each other.

by:  Susan M. Keyes, Esq.

Divorce Without War,®

Years ago, I was visiting my sister in NJ, riding as a passenger in her car with my three-year-old niece sitting in her car seat next to me. My brother- in- law slammed on the brakes, forced to stop suddenly when the car in front of us stopped. As our car lunged forward, my niece shouted, “YOU MORON,” and we all looked at her with shock. What caused her to say this? How many times had she heard a parent yell “YOU MORON” while driving?  We know that children may not be very good at listening to their elders, but in these moments, we realize they are listening, and they never fail to imitate us. 

When a person observes the behavior of another and then imitates that behavior, he or she is modeling the behavior.  Modeling also applies to adult interactions.  Collaborative Team members model behavior for others in the Collaborative Process, including the clients and other team members.  We risk serving as models for inappropriate and undesirable behavior, such as swearing, losing our temper, interrupting, and speaking disrespectfully.  Appropriate behavior can be modeled by speaking calmly and respectfully, setting the tone for all of the participants at a Team meeting. Listening and not interrupting, even when what is being said, is displeasing or seemingly incorrect, requires restraint, but leads to respectful dialogue. Participants in the Collaborative Process will be more inspired to behave in this way if they view the professionals maintaining this decorum. Outside of Team meetings, do you promote blame, propose that the other attorney is difficult or that the other spouse is unreasonable.  Venting, in this way, is modeling negative behavior. Alternatively, sharing information without disparagement or judgment leads to better understanding and improved outcomes.

In the Collaborative Process, the Team will demonstrate how to speak, listen, and perhaps even understand another perspective- thus creating an atmosphere of respectful communication. Against this backdrop, the parties will reach more holistic resolutions, with improved communication patterns in the relationship after the divorce.  As Collaborative professionals,  we must model the behavior we wish our clients to display.  Lead by example.

Benefits In Collaborative Divorce: You Be The Judge!

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,

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!

The Collaborative Process: A Different Way To Divorce

by:  Sydney A. Towne, Esq.

Marks and West, P.A.,

Months spent stuck at home trying to work and simultaneously homeschool can show the fault lines in a marriage. There will undoubtedly be marriages that can recover from the stresses of the current pandemic; however, there will also be marriages that were not working before and for which this crisis is the final straw. That does not mean that those marriages which will end, must end in a contentious, expensive, and public battle in a courtroom. There is an alternative to end your marriage respectfully, frugally, and privately – Collaborative Divorce.

In 2017, the State of Florida legislature passed new laws that allow couples to divorce almost entirely without having to enter a Courtroom. This procedure is called “Collaborative Divorce,” and it can provide you and your spouse with a different divorce experience than you see in the media or that your friends or family have experienced.

In a Collaborative Divorce, each spouse hires their own collaboratively trained attorney who represents and protects their interests. Upon recommendation of counsel, you, and your spouse will hire a neutral mental health professional and, depending on your assets and liabilities, a neutral forensic accountant. These trained, impartial professionals will guide you and your spouse, along with your attorneys, through a series of team meetings to identify your goals, concerns, assets, and liabilities. After those are identified, you and your spouse, not a Judge who has limited knowledge of your family and circumstances, will make the ultimate decisions about your children, your finances, and your family’s future.

Information regarding your income, the marital estate, reasons for getting divorced, and the amount of any spousal support, is not filed with the Court and remains private. In the same way, your marriage was between you and your spouse; your divorce can also be as well.

Perhaps more important than preserving your privacy and allowing you to control the outcome during what is inevitably a difficult and emotional experience, the Collaborative Divorce process allows you and your spouse to redefine your relationship with the support and experience of trained professionals. If you have children and you want to be able to attend graduations, weddings, and other celebrations without animosity or lingering ill will, Collaborative Divorce provides the best process for working through the end of your marriage civilly.

If the current pandemic has taught us anything, it should be that difficult experiences that are handled calmly by trained and experienced professionals can minimize adverse outcomes and protect the things and people who need it the most. If you are contemplating a divorce, I, as a collaboratively trained attorney who also litigates divorces, would strongly encourage you to consider the Collaborative Divorce process. 

A Users’ Guide: Facilitators In The Collaborative Process

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,,

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.

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