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Collaborative law takes a foothold in Florida.

Arguing couples spending fortunes in legal fees. Spouses using their children as bargaining tools. Weeks dragging into months as husband and wife fight over assets and belongings gathered during the happy years of their marriage.

Ask any family lawyer and he or she will tell you this can be a common divorce scenario.

But now, some Florida family attorneys are taking matters in a different direction -- a non-adversarial one.

Family lawyers in several circuits are promising their clients to stay out of court, making the entire process better for the attorneys, the court system, the clients, and, most importantly, any children involved.

Both collaborative law and cooperative divorce are spreading rapidly across the state as more and more attorneys tout the merits of these non-adversarial methods' and more and more clients learn the benefits of working together to stay out of court.

Collaborative Law

Created by Minneapolis solo Stuart Webb 10 years ago to remedy his dissatisfaction with adversarial family law, the collaborative law model emphasizes positive negotiation to stay out of court.

Both parties and their lawyers agree, typically in a written contract, to negotiate a settlement out of court. If the parties. can't reach an agreement, the lawyers for both sides must withdraw, and the parties have to hire new lawyers to litigate the case.

With the threat of court removed, divorcing couples and their lawyers have an incentive to cooperate and settle the matter as quickly and fairly as possible. And, unlike divorce mediation, both parties have the assistance of an attorney to advocate on their behalf.

"The entire process is grounded" in good faith," said Rosemarie Roth, founder and president of the Collaborative Family Lawyers Institute in Miami. "If there isn't good faith, it isn't going to work. There must be trust between the two attorneys."

The mutual interest in a quick and fair settlement also allows for open communication of information that normally would be sought in a lengthy discovery process. The parties come to the table with financial and other records in order to divide assets and decide child custody issues with a positive attitude and positive results.

"It doesn't make these people like each other any more or make them trust each other anymore," said Roth. "But, they're working toward a common goal. Divorce can be a very, very horrible, hostile situation. The kids are pulled into the process. Children bear the terrible effect of it that can last forever.

"We have found that we're saving the kids from having to be any part of that process," she said.

Keeping the children out of the process is a definite plus, and when couples will be sharing custody of their children, it's best that their relationship is not completely destroyed, Roth added.

"The one thing that none of us knows is what the long term effect of litigation will be on children," said Joe Hood, cofounder and vice president of the Collaborative Family Law Group of Tampa Bay. "We all believe everyone is doing things in the best interest of the children. But at the same time, every psychologist will say that litigation is bad for kids. Collaborative lawyering, because of the perception that everyone is working together, is less harmful."

And unlike litigation, where each party hires his or her own accountant, psychologist, or other expert witness, in collaborative law, the couple decides on neutral experts that will assist them both.

"We just settled a very significant case after 14 hours of conference. This was a collaborative case with substantial assets in it. The husband is an attorney and the wife was a homemaker, and they have two kids," said Roth. "What it saved them in terms of the amount of time that was spent for them and the attorneys, and for the neutral accountant is overwhelming. Had it been litigated, it would have cost them a ton."

And that is one of the major selling points for collaborative clients -- the lower cost. Experts estimate the cost of collaboration to be one-third that of litigation.

"I know that it would be almost impossible to run up the kinds of fees that people do in litigating divorce cases in a collaborative context," Hood said.

Additionally, family law sports perhaps the largest percentage of pro se litigants in the system. Hood argues that informing laypeople about this alternative methodology may open the door to a whole new source of clients that weren't there before.

Cooperative Divorce

Another non-adversarial process steering divorcing couples away from court has cropped up in Ft. Myers, thanks to the pioneering work of attorney Shelly Finman.

Cooperative divorce shares many parallels with collaborative law, most notably the emphasis to resolve disputes out of court and work in a non-adversarial environment. However, the cooperative lawyer does not withdraw from a case if the parties can't come to an agreement.

"The primary advantage in the cooperative and collaborative models is the prevention of emotional wear-and-tear on the family, so that when the parties are done, the family relationship is restructured, not destroyed," Finman said.

"Our cooperative model was developed prior to and independent of the collaborative model," he added. "Our cooperative model involves the judge as a significant resource for cooperation, if necessary to involve the court."

Finman argues that while the collaborative model is good for people who trust their spouse, the cooperative divorce model can apply to a much larger percentage of divorcing couples while still keeping the process non-adversarial.

And in Lee County, where Finman created the cooperative model, there is a cooperation track within the court system that parties and their lawyers can opt into. If participating attorneys eventually do end up in court and the judge finds that either side is not cooperating, 'the court can and usually will reward or withhold fees, he said.

"It's geared solely to be fair," he said. "As a result, we don't have motions to compel in Lee County [family court] anymore."

The cooperative model also provides for the use of a neutral expert, and the model allows the expert to have a broader scope of responsibility than typically allowed. For example, if a CPA is involved to handle the financial aspects, he or she, if certified, could also mediate for the couple.

This also makes for a lower total cost to clients -- 30- to 50-percent less than a litigated divorce, according to Finman.

But in both collaborative and cooperative models, the lower cost to clients does not necessarily translate to less money for the attorneys. Each case may produce fewer billable hours for an attorney. However, they typically settle faster, which allows for a larger volume of cases.

"I think people are concerned that it won't be as income-generating," Hood said. "Our group is roughly 70 members right now. That's a large number of attorneys in the area committed to the process."

Finman added that, in fact, the process makes for less accounts receivable and more earnings.

"If I work with satisfied people and I work with cases that take a shorter period of time, then these folks are going to pay me and pay me promptly," he said. "Plus, when they're done, they're so pleased and so respectful of the system that the referrals come flooding in."

Florida judges appear to be supportive of these non-adversarial models, as well.

"They are excited about the possibility of taking some litigation out of the courtroom," Hood said. "If we take more of the litigation cases out of their hands and resolve them, then they've got more time to deal with their biggest problem -- prose cases. Any way you look at it, how can that not help the judiciary."

Due to the relatively long history of non-adversarial methods in Lee County, 20th Judicial Circuit Judge Hugh Starnes is now able to carry a full family law docket and volunteer to do some first-appearance criminal matters, he said.

"And I have the luxury of doing that because the family law docket runs so smoothly," he added.

"As a judge, there is no more miserable position to be in than to walk into the courtroom with angry, hostile people. You feel it in the air, you see it in the body language, and if the attorneys get enmeshed in that, too, you hear it in their arguments," Starnes said. "It's a miserable process to be involved in."

But thanks to collaborative law and cooperative divorce, these family law proceedings don't have to be World War III, said Starnes, who is a member of the Supreme Court Family Court Steering Committee and chair of its "ADR+" subcommittee.

Roth, Hood, and Finman are doing their best to spread the word about collaborative law and cooperative divorce to attorneys, clients, and judges, in the hopes of spreading some of their happiness to others. They may also have help from the Florida Supreme Court, based on recommendations from the Family Court Steering Committee for use of non-adversarial methods within the model family court.

But to them, it's not just about doing what's right. It's also about doing what feels right.

"We're just trying to make things easier and more practical for everyone involved," Hood said. "I think we can all live longer and enjoy life more through a collaborative approach."

The Florida Bar Family Law Section will be highlighting collaborative law and other non-adversarial family law models at the Bar's Midyear Meeting on January 10 from 8:30 a.m. to 4:30 p.m. Speakers at the "Matrimonial ADR -- Mediation, Arbitration, and Collaborative Lawyering" seminar include Roth, who has organized a collaborative divorce demonstration, and Alan Rubinstein, a Ft. Myers attorney who will discuss matrimonial arbitration.

For more information about the seminar, refer to the insert in the Dec. 15 Bar News, or contact Debby Beck at The Florida Bar, (850) 561-5650.

For more information about the Collaborative Family Lawyers Group of Tampa Bay, visit www.tampbaycollaborativelaw.com, and for the Collaborative Family Lawyers Institute in Miami, visit www.collaborativefamlaw.com.
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Author:Brown, Amy K.
Publication:Florida Bar News
Date:Jan 1, 2002
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