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Collaborative law movement is gaining in popularity

Senior Editor Top Stories

Innovative and CollaborativeYears after the practice began in Florida, four years after it was ensconced in state law, and three years after accommodations were made in procedural and Bar rules, the use of collaborative law is growing with local associations supporting its legal, mental health, and financial practitioners.

There’s also a statewide organization, as well as national and international associations to help those practitioners as they expect collaborative practices to reach beyond family law cases.

“I think…it’s unique,” said Marta Alfonso, a CPA, who is also a Bar member and the treasurer of the statewide Florida Association of Collaborative Professionals. “There are some other cooperative cases, but to bring together four professionals in this type of an instance, it’s pretty unique.

“It requires a training and understanding and a change in mindset. Could it be done with other disciplines of the law? It’s certainly a model to look at and consider.”

Miami attorney Robert Merlin, who is president-elect of the FACP and a long-time collaborative practitioner, said there are now local through international associations supporting collaborative law. With that support, he’s seen collaborative practices expanded to other cases, including probate and even wrongful death.

There are around 17 local organizations in Florida with lawyer, mental health, and financial professionals as members, Merlin said, such as the Florida Collaborative Family Law Institute in Miami-Dade County.

Added Miami attorney Bette Quiat, who is co-president of the institute, “Infrastructure is critical. It provides training on a local, statewide, national, and international level. It provides standards and accreditation. It provides a means for becoming familiar with the other professions on a professional and social basis, so when you form a [collaborative] team, you have some familiarity.”

Merlin likened the local organizations to voluntary bars that provide guidance for practitioners and education for the community about collaborative law. “Professionals pay dues and help each other and help the community,” he said.

Statewide, the FACP provides backup for local organizations, helps them communicate with each other, and suggests standards, said Dr. Craig S. Fabrikant, a South Florida psychologist who works in collaborative law, and is secretary of the organization. He also belongs to three South Florida local collaborative law associations.

Nationally, the ABA provides support for collaborative law, and Merlin belongs to two different international organizations.

And as collaborative law has evolved, more lawyers and mental health and financial professionals have touted its success – for clients and practitioners – and are looking for ways to expand it beyond family law.

“I think as the legal system becomes more difficult to navigate and becomes more expensive, people are going to be looking for alternative ways to resolve their disputes, and collaborative law is one idea for that,” Quiat said.

Merlin said the number of collaborative cases has risen significantly since the 2016 state law [Quiat estimated a doubling], and he said about 90% of collaborative cases end successfully.

The practice can be less demanding not only for clients but on practitioners as well.

“Collaborative practice is, for the professionals, not stress free but definitely reduced stress,” Fabrikant said. “There’s a big difference between lawyers getting ready to go into litigation and lawyers getting ready to do a collaborative case. It’s more relaxed, a different approach. You don’t get the kind of professional burnout you do when you litigate a case. Even for psychologists, it [testifying in litigation] is very anxiety producing.”

It can produce less bitter outcomes for clients, such as divorced couples co-parenting.

“The process is one where people agree on the discovery that’s going to be provided to each other,” Afonso said. “They agree on the issues that they have and they agree on the manner in which the issues are going to be resolved. It’s definitely a different approach.”

“It’s very different from litigation in that the people involved truly want a successful outcome, and it’s directed to having the clients feel that they have achieved a successful outcome,” Quiat said. “One of the key things that I think makes it successful is the ability to respond immediately to problems. While you might have to wait two to three months for a hearing on an issue, be it temporary support or having someone move out of the house, in collaborative law that result is approached by the team and can possibly be achieved on a one-day basis.

“That is of tremendous value to a client.”

Quiat and Merlin said they expect more areas of law to go the collaborative route from probate to personal injury. They also said the process has been smooth through the COVID-19 crisis because the meetings are easy to do online.

“Probate disputes fairly regularly involve family members fighting over money, and the more they’re fighting, the more money they’re spending and destroying their family relationships,” Merlin said.

“There have been two wrongful death cases, one in California and one in North Carolina, where collaborative law was used, and in North Carolina, there is a program to use the collaborative process in medical malpractice cases,” he added. “I know some people who have used it in employment and business disputes.”

It can be especially useful in the latter, he said, “because both sides may want to continue doing business, but there is something getting in the way of their business relationship.”

And just as bar associations promote pro bono, Merlin said Florida local collaborative associations promote pro bono programs for collaborative law to make it available for low-income parties.

“FACP is actively looking to expand providing pro bono collaborative services to communities that need legal services and need help resolving family disputes,” he said. “It would be great to get buy in from the courts, and for the courts and the clerks’ offices and for the FACP to work together so we can all try to provide more services to those communities that are underserved.”

Collaborative law can require a readjustment for those who think in terms of litigation for dispute resolution.

Or as Quiat put it in the family law context, “there are some people who believe they cannot have a real divorce unless they have drama and litigation.

“A mistake that people make is to think collaborative practice is all kumbaya. It is not that at all. It works in a more positive manner than litigation.”

She added, “Just like mediation was virtually unknown 40 years ago, collaborative law doesn’t have widespread familiarity to the public as of yet. I believe it’s each lawyer’s duty to present to a client the different options available to resolve a dispute, from litigation to mediation to collaborative law, when they are approaching a problem. Hopefully lawyers will become more familiar with the collaborative process and be able to use it as one of the options in their practice.”

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