by Robert Merlin
The Collaborative Law Process Act was passed by the Florida Legislature and was signed into law by Gov. Rick Scott on March 24, 2016.1 This article explains how the collaborative process works, the history and purpose of the act, and why family attorneys should use the collaborative process to represent their clients in family matters. Rules of procedure and professional conduct were presented to the Florida Supreme Court on September 16, 2016, and they were pending before the court at the time of writing this article.
In 1990, a family attorney in Minnesota, Stuart G. Webb, wrote a letter to Minnesota Supreme Court Justice A.M. “Sandy” Keith explaining an idea that he had for using a process to help couples dissolve their marriages in a private and humane way, outside of the judicial system. His vision was that family attorneys would use their negotiating and communications skills to help the parties resolve their matter themselves, without a judge dictating to the family how they must live their lives. Webb’s vision was that the attorneys would not represent their clients in contested litigation, which would require the attorneys to have the “analytical, reasoned ability to solve problems and generate creative alternatives and create a positive context for settlement.” In 1992, psychologists in California, Peggy Thompson and Rodney Nurse, and some lawyers and financial professionals were creating a similar system to help couples resolve their differences in a supportive and constructive manner. In 1993, the professionals in California learned about the collaborative process that Stu Webb had created, which led to the blending of the two concepts. The process has grown from that small, humble beginning with one man’s idea to a process that is now being used throughout the United States and in 24 countries.2
The collaborative process is an alternative dispute resolution process unlike any other ADR process in a number of ways. Each party hires their own attorney, who is typically specially trained in the collaborative process, although that is not a legal requirement at this time. The only “requirement” of the collaborative process is that the attorneys agree in advance that they will not represent the clients in contested litigation if the process is terminated or it otherwise breaks down — the collaborative attorneys are disqualified from representing their clients in contested litigation if the collaborative process is terminated. No one, not the clients or the professionals, can be forced to utilize the collaborative process because it is voluntary for both the parties and the professionals. While it is possible that litigation could result if the parties are unable to resolve their case, the threat of litigation is not used during the collaborative process. The result of the disqualification requirement is that the attorneys are dedicated to helping the parties resolve all of the issues in their matter. Consequently, the attorneys are rarely the cause of the negotiation process breaking down, unlike in some litigation cases in which an attorney may be fueling the fire, rather than trying to help his or her client to resolve the matter.
There are no hearings or formal discovery requests in the collaborative process. Everything is done outside of the judicial system, except in litigated cases that are stayed to use the collaborative process. There is no need to take any formal action to obtain discovery because one of the basic tenets of the collaborative process is that it is transparent, meaning that documents and information are voluntarily provided and exchanged between the clients. If a party or another participant feels that a document is needed, the other party voluntarily agrees to obtain the document without the necessity of issuing a subpoena to obtain the document. The discussion shifts from a party possibly being obstructive to how the document can be obtained and how long it will take to obtain it. This results in a saving of time and money for the parties.
The parties and professionals meet together in meetings that are usually scheduled for two hours and for which there is an agenda. All of the participants know in advance what topics are going to be discussed during the meeting. Each attorney will meet with his or her client to prepare for the meeting. The pre-meeting conference with the client gives the attorney an opportunity to educate the client on the issues that will be discussed during the joint meeting and to strategize how they will approach each issue.
The meeting agenda includes how the professionals’ fees will be paid. That is typically a topic to be addressed and resolved during the first meeting. The ultimate responsibility for the professionals’ fees may not be resolved during that meeting, but the source of funds to be used to pay the fees and the process for paying the fees will be discussed and resolved by the parties during that first meeting. This typically eliminates the arguments over the payment of fees that occurs in so many litigated family cases. The experience of collaborative attorneys in Florida and elsewhere is that the frequency of professionals having receivables in their family cases is dramatically reduced in collaborative cases. While an attorney and other professionals may bill less in a collaborative matter because many things that are done in litigation are not necessary in collaborative matters, the percentage of billable hours actually paid to the attorneys and other professionals is much higher in collaborative matters than in litigation.
Minutes are taken of each meeting to create a record for the parties and professionals to use as they proceed with the negotiations and the eventual preparation of a settlement agreement. A separate record of the agreements that the parties make is kept, which the parties sign to ratify. Those temporary agreements become enforceable once the parties approve them in writing.
The collaborative process is privileged, except in circumstances such as if there is a threat of bodily harm to another or if a client is going to commit a crime. The purpose of the privilege is to encourage the parties and professionals to be honest and forthright in the negotiations, similar to mediation. Either of the parties and any of the professionals can invoke the privilege to preclude something that was said during the collaborative process from being disclosed to a third party, such as in subsequent contested litigation.
In many litigated family cases, emotional issues, anger, and disputes over parenting styles can occupy a lot of an attorney’s time and energy and cost the parties a lot of money. The presence of a neutral mental health professional (MHP) enables those issues to be addressed quickly and with an expert who is familiar with the family. Although the MHP will not provide therapy to the parties, that professional will use his or her skills to discuss the emotional or parenting issues with the parties to help them resolve their differences. Although one could say that an additional professional will add to the overall cost of the process, the existence of the MHP winds up saving the parties money by addressing the underlying emotional issues early before they grow and interfere with the parties’ ability to negotiate with each other.
The vast majority of the joint meetings of the parties and professionals take place in the same room with everyone sitting around a table. This is not a mandate of the collaborative process, so meetings can be structured to create a safe environment if there is a threat to a party’s well-being, such as when there has been a history of domestic violence or other coercive behavior between the parties. During the joint meetings, the professionals model appropriate behavior for the parties. Even though the differences between the parties may be significant and there may be differences in personalities and parenting styles that may never be fully resolved, that does not mean that the parties cannot learn how to resolve their differences. The professionals demonstrate to the parties, through the manner in which they treat each other, that differences can be respectfully resolved. The goal is to teach the parties to resolve their own differences so they do not have to go to court in the future to ask a judge to resolve their differences for them.
The collaborative process is private. No one other than the parties and professionals know what is occurring during the process. While it is possible for an action to be filed and for the parties then to choose to utilize the collaborative process to resolve their case, most collaborative matters do not involve anything being filed in court until after the parties have signed a marital settlement agreement. Therefore, the public and the media do not even know that the parties are involved in a divorce or a paternity dispute, and nothing will become public until a simple petition or motion is filed in which a judge is asked to ratify the parties’ agreement. Instead of a family laying out their dirty laundry for the public and their children to see, the issues are kept private.
There are a number of different professionals used in the collaborative process. Although there is no legal requirement that the professionals be specially trained, the reality is that professionals need to be trained because the team of professionals think, act, and even talk differently from how they would in a typical litigated dissolution of marriage or paternity case. The concept of using an interdisciplinary team of professionals to help a couple resolve their differences requires that the professionals develop skills to work together with a common goal to help the clients respectfully and maturely resolve their differences, as the clients jointly deem appropriate for their particular family.
The professionals used in a collaborative case are:
1) Attorneys: Each party retains their own attorney. Unlike a typical litigated family matter, the attorneys do not work against each other — they work as a team to help both of the clients identify and resolve all of the issues in their matter. The reality is that family cases do not have a winner or a loser, unlike most civil and criminal cases. In divorces and paternity cases, the goal should be to create the best possible future for the family as a whole, given the circumstances of that family, which often includes difficult, if not bad, financial and emotional circumstances. The parents should have a healthy relationship in the future, for the benefit of the children, if not for their own sake. Consequently, collaborative attorneys learn how to develop communication and negotiation skills, rather than just threatening the other side with more litigation if they do not get what they want.
2) Mental Health Professionals/Facilitator: A mental health professional (MHP) is usually part of the team of professionals in collaborative cases as a facilitator of the process. In the model primarily used in Florida, a neutral facilitator is used to help the parties deal with the emotional aspects of the transition of their relationship, and, when there are children involved, that person helps the parents resolve timesharing and parenting issues. The goal is not to be focused on what each parent wants, but on helping the parents co-parent and to communicate well with each other, consistently focusing on the best interests of their children. The facilitator and the attorneys help the parties identify their short-term and long-term goals, and the parties are reminded of their goals throughout the process. In some communities, each party has their own MHP, who acts as a coach for that party. The coach will meet with his or her client periodically to help the client deal with the emotional aspects of the matter. Sometimes, a child specialist is used when there are difficult issues involving a child and the parents cannot resolve their differences without the assistance of a professional who is dedicated to promoting the best interests of the child, enabling the child’s voice to be heard. In either model, the MHP/facilitator does not provide any therapy to the couple. In fact, if the facilitator feels that a party would benefit from individual therapy, such as when there is a history of substance abuse or a diagnosed mental disorder, the facilitator will refer that party to an outside therapist in a nonthreatening manner — such therapy is voluntary.
3) Neutral Financial Professional: When there are complicated financial issues involved or when there is an imbalance of knowledge by the couple of their finances, a neutral financial professional, usually a certified public accountant or a financial planner, will be brought into the process. That person will help the parties gather the information needed to understand the family’s financial situation and will help the parties decide how to divide their marital assets and liabilities and resolve child support and alimony issues. The neutral financial professional does not tell the parties how they must divide their marital estate or how much support should be paid. Rather, that professional gathers information and presents it to the parties and their attorneys for the parties to use as tools in the negotiation process.
4) Other Professionals: The parties may decide to utilize the services of other specialized professionals, such as property appraisers, educational placement experts, and estate planning attorneys. Just as with any other professional, the parties are not bound by what the experts tell them. They use whatever information and opinions the experts give them as tools in their negotiations. A big difference between the collaborative process and traditional litigation is that only neutral experts are used in the collaborative process. The parties, therefore, do not incur the extra expense of having battling experts.
Using professionals as a team to help the parties resolve their matter is a different way to practice law for the vast majority of attorneys. While the attorneys are still advocates for their clients, the attorneys do not act as adversaries. In fact, the professionals model behavior for the parties to demonstrate that even if there are differences in opinions, that does not mean that the differences cannot be respectfully resolved. Although there are no definitive statistics available yet for Florida, the experiences of the attorneys who have been practicing collaboratively for a number of years is that there is a dramatic reduction in post-judgment litigation when the matter is handled using the collaborative process. It is anticipated that this will result in a reduction in the amount of money that will be needed in the future to operate family courts.3
Collaborative Law Process Act
In 2009, the National Conference of Commissioners on Uniform State Laws approved the Uniform Collaborative Law Act (UCLA).4 The purpose of the UCLA was to create a uniform set of laws that the states could adopt so there would be consistency among the states in collaborative matters. The UCLA was amended in 2010 to create rules that were the mirror image of the statutes that had been created.5 This was done to address the situation that exists in most states that the practice of law is regulated by the state’s highest court, not the legislature.6 The effect of creating both statutes and rules was that a state could choose which provisions to place in a statute and which to place in rules.
On March 4, 2016, the Florida Legislature passed the Collaborative Law Process Act, H.B. 967, which was based upon the UCLA, and the bill was signed into law by Gov. Rick Scott on March 24, 2016. The bill provides that it will not become effective until 30 days after the Florida Supreme Court adopts rules of procedure and professional conduct that are consistent with the provisions of the statute.7
The most interesting part of the new Florida Collaborative Law Process Act is the purpose of the act, as set forth in F.S. §61.55, which provides:
“The purpose of this part is to create a uniform system of practice for the collaborative law process in this state. 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.”
Thus, the Florida Legislature has recognized the unique nature of the collaborative process as a method of helping couples resolve their differences without having to go through destructive litigation. The process is consistent with Florida Supreme Court opinions in which the court has promoted the value of alternative dispute resolution processes.8
F.S. §61.56 provides definitions of various terms that are used throughout Part III of Ch. 61. “Collaborative law process” is defined to mean, “a process intended to resolve a collaborative matter without intervention by a tribunal and in which the persons sign a collaborative law participation agreement and are represented by collaborative attorneys.” Thus, the collaborative process requires each party to have their own independent attorney, and all of the participants must sign a written contract, known as a participation agreement, through which the rules of conduct for all of the participants are set forth. It is significant to note that a “collaborative matter” is defined to be a dispute that arises under Chs. 61 or 742. The definitions contemplate that persons other than the parties and their respective attorneys may participate in the process.
F.S. §61.57 provides how a collaborative matter begins, concludes, and is terminated. Generally, a collaborative matter begins when a participation agreement is signed, which can take place before or while a matter is pending in court. Attorneys can move from representing parties in pending litigation to representing them in the collaborative process, but the attorneys cannot represent the parties again in contested litigation if the collaborative process is terminated or otherwise breaks down.
The collaborative process is voluntary, which is recognized in §61.57(2). The statute specifies that a tribunal may not order a party to participate in the collaborative process over that party’s objection. The court can, however, order the case to be stayed while the parties participate in the collaborative process.
Generally, a collaborative matter is terminated if a party chooses to litigate the matter or if a collaborative attorney is discharged or withdraws and the party does not retain a substitute collaborative attorney within 30 days. The substitute attorney must sign the participation agreement and be bound by its terms.
The collaborative process is not terminated and the attorneys are not disqualified if the parties jointly request that the court enter an agreed order, such as a qualified domestic relations order or an order that partially resolves an issue, and the parties intend to continue with the process to resolve the balance of their differences.
The extent to which the collaborative process will be confidential will be governed by the terms of the participation agreement, as provided in §61.58. Typically, in Florida and elsewhere, the participation agreement provides that the entire process is confidential. The process is privileged, as also provided in §61.58. The statute specifically provides that the privilege can be invoked by any of the participants — the parties or the collaborative professionals. This is done to encourage the parties to be open and forthright in their negotiations, which is also promoted by the transparency of the collaborative process. The privilege may be waived by all of the participants and the privilege does not apply in certain circumstances, such as 1) when the parties’ agreement is presented to the court for ratification; 2) when the evidence is offered to prove or disprove professional misconduct or malpractice arising out of the collaborative matter; 3) when a crime or threat of bodily injury is involved; 4) when the collaborative communication is offered to prove or disprove abuse, neglect, abandonment, or exploitation of a child or a minor and the Department of Children and Families is a party to or otherwise participates in the process; or 5) if a court determines that the need for the evidence is not otherwise available and the need for the evidence substantially outweighs the interest in protecting confidentiality, and the communication is offered in a proceeding involving a felony or it is offered in a matter seeking to rescind or reform a contract arising out of the collaborative process.
The statute specifically provides that it will not take effect until 30 days after the Florida Supreme Court adopts rules of procedure and professional responsibility. Those rules were pending before the court at the time of the writing of this article.
Having moved from commercial litigation to family litigation in the 1980s, I knew there had to be a better way to help families resolve their differences than traditional litigation. Experienced family attorneys know this to be the case as well. I hear a constant drone of complaints from my litigating colleagues about wasting time in court; other professionals who act inappropriately; the difficulty in collecting fees; and the difficulty in scheduling hearings in court. The collaborative process has brought a solution to me for all of those complaints. I describe the collaborative process as professionalism at a higher level because the collaborative professionals act differently and treat each other with true respect. Our goal is not to destroy the other party or attorney. Our goal is to help the family create the best possible situation, given the limitations in their particular family. In the collaborative process, I am able to use more of my counseling skills, and the skills and education I have gained from many continuing education programs. I have dramatically fewer receivables, feel happier working, and feel that I provide true value to my clients. These feelings are shared by my colleagues who have chosen to give the collaborative process a chance. As I tell all of the professionals who I train in the collaborative process, give it an honest chance — I promise you will enjoy the practice of law more than you did before learning how to practice collaboratively.
1 Fla. Stat. Ch. 61, Part III.
2 International Academy of Collaborative Professionals, Connecting the Global Collaborative Community, https://www.collaborativepractice.com/public/about/about-iacp/history.aspx.
3 See Florida House of Representatives, Final Bill Analysis for H.B. 967, available at http://myfloridahouse.gov/Sections/Documents/loaddoc.aspx?FileName=h0967z.CJS.DOCX&DocumentType=Analysis&BillNumber=0967&Session=2016.
4 National Conference of Commissioners on Uniform State Laws, Uniform Collaborate Law Act (Nov. 17, 2009), available at http://www.uniformlaws.org/shared/docs/collaborative_law/ucla_final%20act_nov09.pdf.
5 National Conference of Commissioners on Uniform State Laws, Uniform Collaborate Law Rules and Uniform Collaborate Law Act (Oct. 12, 2010), available at http://www.uniformlaws.org/shared/docs/collaborative_law/uclranducla_finalact_jul10.pdf.
6 See Fla. Const. art. V, §15.
7 Fla. Stat. Ch. 61, Part III.
8 See In re Report of the Family Court Steering Committee, 794 So. 2d 518 (Fla. 2001).
Robert Merlin is a partner in Robert J. Merlin, P.A., in Coral Gables, specializing in marital and family law, especially collaborative family law. He is Florida Bar board certified in marital and family law, and he is a Florida Supreme Court certified family law mediator. He is involved in local, statewide, and international organizations that are dedicated to the collaborative process, and he teaches the collaborative process to other professionals. Merlin was involved in the creation and passage of the Florida Collaborative Law Process Act and the rules of procedure and conduct that have been presented to the Florida Supreme Court for adoption.
This column is submitted on behalf of the Family Law Section, Laura Davis Smith, chair, and Ronald Kauffman and Belinda Lazarra, editors.