Collaborative law is an alternative approach to resolving family law matters. Although it has been around in one form or another for decades, Florida has only recently, beginning in 2016, passed legislation which better defines the collaborative law process.
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Why Choose Collaborative Law?
The collaborative approach is distinct from the standard litigation approach because the collaborative approach is intended to be non-adversarial. In our experience, standard litigation is often combative from the second an individual is served with papers, if not sooner. Often times in standard litigation positions are taken, lines are drawn, and people seek to either win or lose at all costs.
What is Collaborative Law?
The design of the collaborative approach allows for a team based approach where positions are cast aside and the group works together to reach common goals. The pillars of the collaborative process are the team. Generally, the team will consist of the parties, each party’s attorney, and third party neutrals. The third party individuals can come from a variety of professions, most often utilized are mental health professionals and/or certified public accountants, and are trained in the collaborative law process.
Your Attorney’s Obligation To You
Your attorney’s obligation is to be your staunchest representative and an officer of the Court. We will provide you with the most practical and straightforward advice available in assessing each client’s situations and goals.
Attorney Client Privilege
In Florida, the attorney-client privilege is codified in Section 90.502, Florida Statutes. This law states that, generally, communications between a client and their attorney are confidential. In other words, without a legal waiver or other specific exceptions, you and/or your attorney cannot be compelled to disclose communications made in performing our services.
Relationship Based On Trust
From the initial consult through the final hearing, it is of the utmost importance for attorneys and clients to be truthful with one another and for there to be trust between them. The pair are a team and trust is essential. We believe in being transparent with our clients and we cannot afford to be surprised at any time in a case because a client has failed to be transparent with us. If the idea should ever cross your mind and you question, Should I tell my attorney this? The answer should always be, Yes – we are available to then tell you if “this” may be an issue.
Your Attorney’s Role
An attorney may have several roles throughout a case, especially in family law. We may be your representative, your advocate, your advisor, an/or your counselor.
The goal of the collaborative process is to preserve assets, establish budgets, assist parties with children in finding common ground on what is in a child’s best interest, and to otherwise remove the stress and uncertainty of litigation.
One of the most beneficial aspects of the collaborative law process is that the attorneys in the collaborative law process are hired, and can only be hired, for the collaborative process. This means there is no padding an attorney’s pockets through unreasonable and overburden some discovery requests, there is no need for depositions, and there is no motion practice through the Courts with the constant filing of documents and pleadings. This can lead to saving the parties significant sums of money and allows for a reallocation of expenses where they would be more beneficial.
Further, the collaborative process leads to less “mudslinging.” In the collaborative process we as attorneys are not out to paint the opposing party as a bad parent or as money hungry because we will never be trying to convince a judge. The attorney’s duty is to ensure our clients receive accurate advice, to ensure they are informed of their options and the law, and to pursue our client’s best interests.
Another advantage of the collaborative process is that it is completely confidential. Much like the mediation process in traditional divorce and the attorney-client privilege in general, communications, meetings, and settlement proposals in the collaborative process are afforded the same protections of confidentiality. On top of not having to go to court, if an agreement is reach through the collaborative process it may not be necessary that the agreement be filed with the clerk of court. This is the most certain way to keep private information from becoming public record.
Be in Control
The best aspect of the collaborative process – you are in control. Sometimes traditional litigation may take years to get through. Then, after years of constant discovery issues and motions, you finally have the chance to have a trial. Perhaps you get a few days for a trial. Obviously it is impossible for a Judge, one person, to hear and learn everything about your family’s situation after years of litigation in a mere few days. Still, the Judge is charged with making a decision and that decision is final. The uncertainty of walking into a court room and knowing everything may change with a judge’s ruling is truly unnerving. Through the collaborative process you can eliminate this uncertainty by working with the team to reach an agreement that suits your goals. In reaching an agreement through the collaborative process you can be as creative and imaginative as you wish, whereas, through litigation, a Judge will often be limited by set factors and circumstances.
How does it work?
The collaborative process begins with all parties signing a collaborative law participation agreement. This agreement will define the parties and their roles, the free exchange of information, confidentiality requirements, and how the process will be funded. Following the execution of the collaborative law participation agreement, the attorneys and the professionals will get together to define the issues of the matter and begin generating a plan on how discovery and meetings will be conducted. Generally, the first meeting of the professionals is without clients. Once a plan has been crafted by the professionals, the full team will meet with all parties to begin tackling issues and finding common ground towards an agreement. Full team meetings will generally last between 2-3 hours per session and each individual is provided an agenda as to what will be discussed at the meeting prior to it taking place. Meetings will continue until issues have been resolved and a settlement agreement has been executed. Once a settlement agreement has been executed, the Court is informed and a final hearing can be scheduled to request the Court implement the agreement of the parties as an order of the Court (if necessary).
I hear all too often, this process sounds too good, what’s the catch? In our experience, the vast majority, upwards of 80%, of all family law cases settle before a final hearing or trial. Some collaborative groups have data showing upwards of 93% of collaborative law cases settle. Thus, it is apparent that settlement is the most common outcome, some people just need a push in that direction. The catch comes for those cases that do not settle. If a settlement cannot be obtained through the collaborative process, then the parties must pursue the only remaining option of continuing on with standard litigation. The professional team and the attorneys are barred from participating in any future litigation through the collaborative law participation agreement. Thus, I strongly recommend to my clients they consider choosing collaborative law only if they believe there is a possibility of settlement. Because you know your partner better than we, only you can gauge that person’s sincerity and interest in the collaborative law process and ultimately determine whether the collaborative law process is right for you and your family.
If the collaborative process sounds like something you and your partner would be interested in pursuing, rather than pursuing traditional litigation, please feel free to reach out to our offices and schedule a consult with C. Garrett Gaa, Esquire and we will happily further discuss your options.