The Collaborative Process: A Peaceful Way to Avoid the Rabbit Hole of the Court System
The cliché “teamwork makes the dreamwork” is never truer than when it comes to the collaborative process. Without the collaborative process, a family may be caught up in the rabbit hole of the court system with no eject button.
After a long journey in which a dedicated group of professionals sought a change in the law regarding the installment of a collaborative law system into Florida courts, the Florida Legislature enacted the “Collaborative Law Process Act,” Fla. Stat. §§ 61.55-61.58. The statute is aimed at “create[ing] a uniform system of practice for the collaborative law process in this state.” The Florida Supreme Court then promulgated the rules when practicing as collaborative practitioners (Florida Collaborative Family Law Rule of Procedure 12.745).
Summed up, the collaborative law process involves a team of professionals who join forces to peacefully help a family resolve all their issues and, as a result, avoid costly litigation. On my end, the inspiration for collaborative law derived from my experiences serving as a family court judge. I saw first-hand the dismantling of families who could not successfully navigate through the court system. It was difficult for me to make the ultimate decision regarding the status of a family when I knew that family would never be the same again.
Of course, a divorce impacts everyone, including and especially children. When children are used as leverage in a divorce, the wounds that are deep may never heal. We, in the family law world, need to do a better job with finding solutions in order to prevent families from self- imploding. The collaborative process is the salve to contain a lifetime of bitterness. The courts, along with the collaborative practitioners, should unify their efforts in identifying cases where parties volunteer to find resolution through a team of collaborative professionals. I am a cheerleader for the collaborative process, because I truly believe that when there is a successful resolution, the likelihood that the family will reappear in the court system will be minimized.
To illustrate the process, say, for example, a couple with children are going through a divorce. That couple brings on two collaboratively trained lawyers. Those lawyers will then build their team that consists of a neutral mental health professional and a neutral financial professional. Both sides will then execute a participation agreement. Everything the team does as collaboration is voluntary, transparent, and confidential. The beautiful part of this process is the lawyers and their team are working together for the interest of finding a complete and peaceful resolution to all issues that the couple might have. A neutral mental health professional bridges the divide between the couple when it comes to children’s issues including the ability to move on beyond the divorce. There may be several meetings that may take months before there is complete closure. It is certainly well worth the time compared to spending time, money, and heartache in the court system. There is no substitute to the agony a family goes through when they are forever caught up in the maze of the court system.
There are times when the collaborative practitioners, after doing everything possible, cannot reach a full settlement. When that happens, the team will withdraw and the parties will need to hire new lawyers. Unfortunately, this is a major critique of the collaborative process. The concern is a couple spends time and expense through the collaborative process and when it doesn’t work then there is a do over by going through litigation in the court system. There is a valid point to the complaints, but overall, the process blunts part of the journey of the case. The reason is the couple had the benefit of a mental health professional and knows the financial position of the other side, which can stop lengthy and expensive litigation. Certainly, it is always preferable to have a complete agreement, but even if the collaborative team was unable to produce a full agreement, the couple can at least reach a partial agreement, especially for children’s issues.
Another complaint of the collaborative process is that it is too costly and only wealthy couples can afford to engage in the process. But this is simply untrue because there are many collaborative-process trained professionals that will work with people from all different financial backgrounds. As long as the team accepts a certain fee, then everyone can participate. The collaborative practice has been around for many years and is practiced all around the world. There is the IACP (International Academy Of Collaborative Professionals). In Florida, there are local Collaborative groups committed to the practice, including trainings and mentorship. The Collaborative Family Law Institute of Miami-Dade (collaborativefamlaw.com) serves the community, through the help of professionals, by assisting a family in avoiding the stress, expense, and conflict of the court system.
When I was on the Bench I created a pro bono Collaborative Law project where pro se indigent party cases were identified. Since the process is voluntary, the parties were given the option to participate. If the parties agreed to be part of the process then a team of volunteer professionals would be chosen. The lawyers would be given pro bono hours. Also, for those who did not have a lot of experience as a collaborative professional they could take on a case with a seasoned processional to mentor them. The objective was to help a family find a peaceful resolution without the necessity of going through the court system. It would also cure some of the congestion for judges who often have overburdened caseloads, and potentially prevent a family from ever coming back into court. I applaud those dedicated professionals who helped me with this project (specifically, Evan Marks, Robert Merlin, Lisette Baraja, and Robin Buckner). The project was also initiated in Broward County thanks to Judge Andrea Gundersen who wanted to help an indigent family stay out of the court system through utilizing the collaborative process. Hopefully the project will find its way through family courts throughout Florida.
After I left the Bench I went through the Collaborative training. I was so taken with the passion of these professionals for teaching a peaceful alternative to litigation. I sincerely believe the Collaborative Process should be taught in law school. Using the Collaborative Process with a team of qualified professionals will assure a better and healthier journey for a family.