Tag: collaborative law

Collaborative Law: What It Is & Why I Should Care?

Posted by Sharon O'Day on with 1 Comment

collaborate

 

Many family law attorneys have heard the buzz about “collaborative law.” Other lawyers may not have heard much if anything about this new process.  Many circuits in Florida now have Administrative Orders defining collaborative law, and the Florida Bar is working to establish statewide rules which will govern the process.  Therefore, this is a good time to become conversant with collaborative law, and to learn how it might apply to your practice area.  

Collaborative law has been around for twenty years nationally but only recently started reaching us locally in a big way. Where the relationship of the parties is an important element of the legal dispute and where there are emotional drivers, the lawyer should consider a collaborative approach as an appropriate method of dispute resolution. An obvious choice for using a collaborative approach is a family law case involving minor children. When minor children are involved, the parties will have to maintain a relationship if only to co-parent their children.  Several studies establish that children who have been the subject of high conflict divorces are at significantly greater risk of experiencing both short and long term emotional and psychological issues.  The sooner divorcing parents can settle their disputes and transition to co-parenting, the sooner they can focus their combined efforts on helping their children adjust to the new family dynamic.

Divorces with minor children are but one of the types of legal matter that may benefit from a collaborative approach.  Probate cases, elder law guardianships, family-owned or closely-held business dissolutions, and other legal cases involving people with long term ties also may benefit from using a collaborative model.

The collaborative model removes the dispute from the entire court system. A collaborative team is established, consisting of a lawyer for each participant, and a collaborative facilitator.  In many cases, the team also might include a neutral financial expert and a neutral mental health expert.  Using a divorce as an example, each party would have a specially trained collaborative attorney, led by a collaborative facilitator who acts as the neutral, focal point of the process and who assures that the dispute proceeds in an orderly and respectful manner.  This person is often, also, the mental health expert for the team.  The neutral mental health expert will assist the parties’ with their emotional needs and, if relevant to the case, address parenting issues with the parties.  If there are financial issues, the parties may hire one financial expert to work with them to prepare their financial affidavits and address other financial aspects of the case.

The primary difference between a collaborative case and a litigated case is that, in collaborative, the parties and the professional team all sign a contract agreeing that they will work together to resolve their issues without litigation.  The parties make an agreement to fully and honestly disclosure information related to the case.  There is no “hide and seek” or ambushing in a collaborative case. Additionally, participants agree to be respectful of each other and avoid all disparaging comments.  If there are minor children involved, the parties agree to insulate them from the proceedings and to otherwise work together to minimize the impact on the children.

The agreement specifically states that there will be no litigation during the collaborative process.  The only way that the case will proceed to litigation is if the parties withdraw from the process.  If this happens, then all of the professionals on the team must withdraw and cannot be involved in a subsequent, litigated case.  This usually leads many professionals to decide that this collaborative work is not for them.  While the objection is understandable, the attorney is well-advised to consider collaborative practice as one of the tools in the attorney’s toolbox nonetheless. The possible withdraw of the attorneys is the “stick” that keeps everyone honest and at the table, and prevents the posturing that many of us have come to expect in a litigated matter.

In collaborative, no one threatens to file pleadings to gain advantage. Instead, the parties look for win-win solutions which can be reduced to an agreement.  Professionals must go through separate training to work in a collaborative case.  One is trained to undergo a “paradigm shift,” meaning that one learns to look at the dispute from a solution-oriented approach rather than from a “what is my best day in court” approach.  The professionals are bound to respect that the parties have agreed that they want to find solutions via a collaborative process, and it is the professionals’ job to get them there.

.Over ninety percent of collaborative cases settle, and such a settlement may be maintained privately, which is another advantage. This is why celebrities such as T. Boone Pickens, Roy Disney, and Arnold Schwarzenegger have all chosen collaborative divorce over having their divorces litigated.

If you are interested in learning more about collaborative law or becoming trained as a collaborative attorney, there is a training scheduled in Tampa, March 20-22, 2014.  Please contact the Family Court Professional Collaborative for more information.

 

Step Four: Establish the Ground Rules

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You have to learn the rules of the game. And then you have to play better than anyone else.  Albert Einstein

Welcome back.  If you have taken the first three steps you are now ready to enter into the negotiations arena.  You have done your homework and are therefore well prepared.  If the other side of the negotiations has not completed the first three steps then I can guarantee that you will be in a better, more confident position when you begin the formal negotiations.  You will know not only what you hope to realize from the negotiations but also your underlying reasons for participating.  You will know when it is best to walk away from the negotiations and how far the other side can go before they feel they must walk away.  You will have determined a fair and reasonable value for any material items that are on the table and assessed the strengths and weaknesses of your case if this is a litigation matter.  You have a strategy and understand the possible outcomes of the negotiations. 

Now, the final step before anybody makes the first offer is to be sure that everyone is on the same page about the process.  This may be a very easy step in the case of informal negotiations but it may take on huge significance in the case of more complicated matters.  As negotiations become more complex, with a greater number of issues on the agenda and more parties seated at the table,  the necessity for clearly defined rules becomes more important.  Without clearly defined rules the negotiations can devolve into chaos or, worse, fail to take place altogether.  You can easily imagine how hard it would be to participate in a six party negotiation with each party represented by zealous advocates but no agreement as to the rules defining the process.  However in simple daily negotiations the rules may be set by regular custom and practice.  If you are discussing where the family should go for dinner the ground rules may be simple: that everyone has a chance to make a suggestion, no one raises their voice, the options will be discussed and the majority wins.

In the case of more significant negotiations that occur in our daily lives, such as the purchase of a home, the rules become more formal and inflexible.  The homeowner lists the property for sale at a given price, the buyer makes an offer to purchase the home perhaps with some specific terms regarding allowances or closing times, the homeowner makes a counter offer and the negotiations continue in this back and forth manner until a deal is made.  The final agreement is then formalized into a purchase contract for the property and a closing for the sale is scheduled.  While the terms of the sale may be more complicated and the process involve more people including the seller, her agent, the buyer and his agent, the overall rules of the process are fairly straight forward. 

One form of negotiations that is becoming more popular in divorces and other legal matters is the use of collaborative representation.  This is a process whereby the parties to a litigation agree to each hire a specially trained collaborative attorney and then all other professionals (accountants, appraisers, therapists) will be hired jointly as part of the team.  In collaborative cases the initial meeting of the parties and the collaborative professionals will most likely be a time to establish the rules of the negotiations.  In such cases the rules are commonly referred to as the collaborative agreement.  This agreement will determine who will be included on the professional team, how the professionals will be paid, who will be the facilitator of the meetings, how often meetings will be held, the rules of confidentiality, what happens if the process breaks down and many other finer details of the collaborative law process.  In my experience having a carefully written and considered collaborative agreement provides everyone with a clear understanding of the procedure and is critical to the success of the negotiations that are to follow.

If you are involved in a complicated law suit with a formal mediation process then there are several issues that must be decided before the mediation begins.  You may have to decide who will be the mediator, where the mediation will take place, who will pay the mediator, what will be on the agenda of the mediation, will the mediation be subject to the local rules in your jurisdiction and if not what rules of confidentiality and neutrality will apply, can anyone other than the parties attend the mediation, and what happens if the person with ultimate authority to make a final deal is not present at the mediation.   Usually these rules of mediation are established by local procedure or by the parties when the mediator is selected.  If the parties are unrepresented the mediator may use the first meeting to reach an agreement by the parties as to the rules that will apply to the process.  In some particularly litigious cases it is a good idea to have the professionals meet with the mediator prior to the initial session to make sure that everyone has accepted the terms of the mediation and are prepared to proceed with the negotiations at the initial session.

In particularly complicated matters such as international, diplomatic negotiations the rules of the process can become a negotiation unto themselves.  In the case of the negotiations for the termination of the Vietnam War the parties spent months arguing over the size and shape of the table to be used.  While this may be an extreme example of negotiations over process, there are many other times when the rules for the negotiations have taken on a life of their own.  As a mediator I have had more than a few mediations cancelled or delayed because, at the last minute, someone tried to change the rules and the other side objected.  I have had cases where, just before the mediation was to begin, one side has said they would only attend if the other side agreed to pay for the mediation or one party wanted to bring a relative when the other side had not previously agreed.  Such last minute surprises are never helpful as they set a tone of mistrust and increase hostility before the process has even started.  It is better, if possible,  to discuss and agree to the “rules” prior to the onset of the negotiations.

If you have questions about the general process of mediation, please refer to my web site (www.odayresolutions.com) for examples of some of the standard rules used in Court Ordered mediations in my area.  These may be different in your area but they will at least provide you with some areas to discuss with the mediator or your counsel before the mediation is set to begin.

PEACEful Divorce: A checklist for dissolving a marriage

Posted by Sharon O'Day on with 1 Comment

sito_Peace_Flowers“Give Peace a Chance.”  John Lennon

With only a brief review of this blog or my company website (www.professionalresolutioncenter.com) a visitor can tell that I am all about finding peaceful ways to resolve human conflict.  My company’s moto is “Peaceful Resolution to Complex Issues”.   But in the case of this article, I am not talking so much about the method of dissolving a marriage as I am about the checklist of things to consider when considering a divorce.  There is a certain irony to using the acronym P*E*A*C*E to organize and prepare for your divorce.  Yet it is actually the tool used to teach new lawyers and judges about the system to process a divorce (at least in Florida).  I am a strong proponent of having a peaceful divorce by using either mediation or collaborative representation to avoid the adversarial process of litigation.  But regardless of the process you employ, you can use “PEACE” to ensure you have covered your most important issues.  The checklist looks like this:

P arental Responsibility

E quitable Distribution

A limony

C hild Support

E verything Else

P is for Parental Responsibility:

The first thing you should consider is Parental Responsibility (unless you don’t have children then you can obviously skip this step).  While there are a number of sections of the Florida Statutes that address parenting issues, the section that addresses time sharing is found at Florida Statute 61.13.  The two main aspects of parental responsibility are (1) who makes major decisions affecting the children and (2) where do the children go to sleep each night.  These are two distinct issues to be considered as the children may sleep the majority of time at Dad’s house, but both Mom and Dad may have an equal say in whether Johnny gets braces or Taylor gets to go to band camp in Georgia.  In Florida it is most common for the parties to have “shared parental responsibility” wherein the parents have an equal say in the major life decisions affecting the children.  However, in some cases the parties may agree, or the court may order that, in the case the parties cannot agree on a decision after consulting each other,  one parent will have ultimate decision making on certain issues like education or medical care.  In extreme cases the court may order that one parent have sole decision making, that is they need not consult the other parent when making decisions affecting the children.

The second issue to be addressed is the time sharing schedule for the children.  Florida and many states have done away with “custody” and “visitation” and moved to the more realistic and equitable status of time sharing.  If a judge is to determine a time sharing schedule they are told to consider twenty factors to decide what schedule is in the best interest of the children.  Clearly, the parents, who know the children and the situation of the family are in a better place to determine what schedule will work best for them.  Samples of the Florida Supreme Court and Twelfth Judicial Circuit Parenting Plans can be found here.

E is for Equitable Distribution

The next thing to consider is how the parties will divide up their assets and debts.  Again several areas of the law address these issues, but the main provisions are to be found in Florida Statute 61.075.  If the court is to determine the equitable distribution, then they must first determine what is or is not marital assets and liabilities.  There are countless cases that discuss the finer points of what is and what is not marital (i.e. I owned a house before the marriage, but during the marriage you helped me put on a new roof and remodel the kitchen and my pay check was used to pay the mortgage, is any of the appreciation of the property marital?)  The statute helps to answer these questions but often, in complicated cases, if the parties cannot agree, then these issues get turned over to the judge for a decision.  After there is a determination of what is martial and what is non-marital, then the marital items must be “equitably divided”.  The statute says that the law starts with the premise that the division should be equal unless there is a justification for an unequal distribution based upon ten factors, including the catch all “any other factor necessary to do equity and justice between the parties”.  You can imagine how this can be fought out if the parties don’t reach an agreement.

A is for Alimony

The third item on our divorce checklist is Alimony or spousal support.  The rules for alimony can be found at Florida Statute 61.08.  This is probably the most hotly contested area of any divorce.  However, with careful consideration  and some creative thinking, it is very possible to come to an agreement on spousal support and avoid litigation.  Basically, as of July 2013, there are four kinds of alimony in Florida: (1) bridge the gap; (2) rehabilitative; (3) durational and (4) permanent periodic.  (If you are reading this after May 2014 this entire section might have changed as there has been considerable pressure to change the alimony statute in Florida for the past several years.)  For purposes of determining alimony the marriages are divided into three categories depending on their length: (1) short term marriages are any less than seven years, (2) medium term marriages are any between seven and seventeen years and (3) long term marriages are any longer than seventeen years.  First there must be a determination as to whether either party has a need for alimony and then a determination if the other party has an ability to pay alimony.  If there is a “need and ability to pay” then there must a determination as the amount and type of alimony.  For this the Court considers the length of marriage and ten factors (including again the lovely catch all “any other factor necessary to do equity and justice between the parties”.)  There is currently no formula to use to determine how much alimony should be paid and for how long.  It is easy to understand why this issue has become perhaps the most litigated issue in any divorce.

C is for Child Support

The determination of child support is one of the more straight forward areas of divorce law as it is based upon “guidelines” found at Florida Statute 61.30.  While there may be some dispute about the income of each parent based when a parent is unemployed, under-employed or self-employed., once the actual income is decided, then calculating child support is a matter of filing in a formula and seeing what comes out the other side.  The form used to calculate the formula can be found here.  While these are guidelines and may be modified by agreement or the court, it is important to remember that the statute is clear that parents have an obligation to support their children and this is the area where the courts exercise the least flexibility.   Under child support the parties should also consider such factors as which parent will supply health insurance for the children and how will uncovered medical bills be paid?  How will the parties divide the Federal Tax Deduction and Earned Income Credit for the children?  Also, the parties may be able to come to agreements about child support issues that the Court does not have authority to consider under the statute such as issues of support of children while attending college, payment of tuition for college, and how the parties will divide the payment of extra-curricular activities.

E is for Everything Else

So, after considering all of these issues, what else is left?  The E for everything else.  This is where the parties or the Judge can decide which party will pay for the attorney fees (consider Florida Statute 61.16), will the Wife have her name restored to her maiden name, do there have to be additional orders from the court to divide certain retirement plans or to re-title property, etc.

The order of the issues in the PEACE method is also important.  Alimony can only be determined after  Equitable Distribution because how the assets are divided (family business, investments, rental property) may affect the income that each party has available.  Child support can only be determined after Alimony because child support is based upon the proportional share of the family income held by each parent and if alimony is provided then this will shift the proportions of overall income.  And clearly “everything else” comes after everything else.  So, use the checklist in the order it is provided.  Ignore anything that does not apply to your family (no children then no parental responsibility or child support) and consider each factor to come to an equitable resolution of your case.

Hopefully this article will help you, the dear reader, understand some of the basic factors to consider if you are considering a divorce.  Hopefully it has also helped you realize why advice from a well qualified attorney can be so valuable if you find yourself in a situation where a divorce is happening.  This article is not meant to take the place of the careful advice of an attorney trained in marital and family law.   Whether you decide to proceed in a collaborative, mediated or litigated divorce, the PEACE outline provides a short checklist of the issues to be addressed.

Collaborative Law — A Paradigm Shift to a New Beginning

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It is the long history of humankind (and animal kind, too) those who learned to collaborate and improvise most effectively have prevailed. —Charles Darwin

This week I attended the Inaugural Collaborative Family Law Conference of the Collaborative Family Law Council of Florida. It was so exciting to attend a conference with so many professionals dedicated to resolving family conflict in a peaceful and non-litigated way. We had workshops on negotiation techniques, helping clients through collaboration, creative financial solutions in collaborative cases and optimizing the mental health professionals in collaborative law.

But, perhaps my favorite workshops were the ones that addressed ways to spread the word of collaborative law. This is because I so much enjoy bringing this concept to my clients and facing the trauma of divorce and family litigation. After representing so many individuals in family court I have come to the absolute and unshakable belief that our adversarial process is the worst alternative for most families in transition. The decision to get a divorce is already one of the most painful and frightening decisions that a person can make. The husband and wife are already under enormous stress because of the facts that lead them to the lawyers office for the initial consultation. Too often the divorce is precipitated by financial difficulties, disagreements about child rearing, or perhaps the mistrust bred by infidelity. To then force the couple into a rigidly structured judicial system that rewards the best adversary with a “win” is so destructive to the family on many levels.

It is, I believe, common knowledge that litigation is extremely expensive.  The idea that one side should play “hide and seek” with information and only provide it to the other side when ordered to by a court is clearly not cost effective.  As a litigation attorney I have seen how the price of a divorce and continue to climb as we conduct depositions, business valuations, forensic accounting reviews, social investigations, and every expanding legal discovery.  Clearly all of this legal rangling takes a long time to play out while all of the parties lives are on hold.  Perhaps most tragic of all though is the emotional toll the litigated divorce has on the parties and their children.  As animosity is escalated, the children clearly suffer.

So, some professionals that have worked in the system for many years have developed an alternative. The new system, Collaborative Law, allows the participants, the divorcing couples and their lawyers, to work together with trained financial and mental health professionals to find the best solutions to the issues that need to be resolved by the family. The main premise of a Collaborative Divorce is that the clients and the attorneys work together through negotiations to reach a settlement which meets as many of the parties needs as possible. The process is client and child focused. The parties agree to be open and honest in their communication and in providing all necessary documents or information to make informed decisions. The participants all promise to be respectful and honor the dignity of the process and the participants. Everyone involved in the process is committed to working towards healing the parties and the family.  This means that the threats and intimidation are not used and there is never a goal of forcing the other side to prove their case to be successful.

Perhaps the hardest element of the collaborative process for untrained attorneys to grasp and agree to is the participation agreement. This contract, signed by the parties and the attorneys, provides that, should the collaborative process fail, the clients will retain new counsel to begin again. Most lawyers not trained in collaborative law will say, “I will work with the other side, but I will not sign a collaborative contract. I want to represent my client if settlement doesn’t work.” I am all too familiar with this statement because I made it before I understood the Paradigm shift. The shift is what allows the collaborative professional to fully participate in the process. The shift is when the collaborative attorney commits to laying down all the weapons in their litigation arsenal and fully embrace the new way of thinking and speaking that is completely collaborative.

Collaborative Divorce is the new big thing in family law.  It is also working its way into other areas of law when parties want to avoid litigation and find a new way to resolve conflict.  It is important, if you are thinking of seeking a collaborative divorce, that you ask questions of your professional to ensure that they are truly as committed to the process as you are. Ask about their training, their understanding of the process and their willingness to sign a participation agreement. Ask if they have a membership in a collaborative group in their area. There are no state guidelines for collaborative professionals in most states yet. But there are a growing number of professionals committed to this creative idea. Having spent two full days in a conference full of such professionals, I can tell you that you really “know it when you see it”.