COLLABORATE, ARBITRATE, AND HOPEFULLY DO NOT LITIGATE
Collaborative Law Section
The arbitration process
can be a useful tool in
the collaborative divorce
process and is a great
alternative to litigation when
the collaborative divorce
process is unsuccessful.
A
family law case
generally concludes
through the
collaborative divorce
process, or if the process is
unsuccessful, the parties proceed
to litigation. One of the big
advantages of the collaborative
process is confidentiality. There
are minimal court filings, so
clients’ financial records and
personal lives are kept private.
A comparison between the
collaborative process and litigation
is stark. The collaborative process
provides a confidential and client-
centered focus where parties and
a team of professionals customize
solutions to fit the needs of the
family; family law litigation is
adversarial, uniform, and costly,
something no sane person desires.
But, what happens when there
is a stalemate in the collaborative
process and the process ends?
Clients have already been informed
of the pitfalls of litigation and now
expect the worst. Clients should not
be presented with a binary choice
of the collaborative process or
litigation. There is an alternative
— arbitration. Arbitration is a
form of private dispute resolution
that clients, before beginning the
collaborative process, may want to
elect as an alternative to litigation
if the process is unsuccessful.
In many civil contracts, there
is a clause that requires arbitration
in lieu of litigation. Your retainer
agreement or engagement letter
may contain a provision requiring
you and your clients to submit
certain disputes to arbitration.
Why not have a similar provision
in all collaborative participation
agreements? The agreement could
require the parties to attend binding
arbitration, in lieu of litigation, if
a stalemate occurs or the process
ends. Provisions for the arbitration,
including confidentiality and other
terms, can be agreed to at the
beginning of the process when
clients want privacy and wish to
avoid the time, costs, and negative
byproducts of litigation.
Arbitration is sanctioned by
Chapter 44, Florida Statutes, as
an alternative to judicial action.
Chapter 682, Florida Statutes,
sets forth an arbitration code for
commercial matters. Confidentiality
is a hallmark of arbitration. The
only restriction in Florida for
arbitration in family law cases is
that the proceeding cannot involve
a minor child, even if matters
involving the child are not at issue,
including in post judgment matters.
Arbitration can and should be used
when the process fails or for issues
where the clients cannot agree.
For example, consider a matter
where the clients have no minor
children and are in the collaborative
process, but cannot agree to the
value of a business. The business
valuation can be arbitrated, a
decision rendered by an arbitrator
(who could be a lawyer, accountant,
or even a business valuator), and
then the matter sent back to the
collaborative process to finalize
the divorce with the established
business valuation.
There are numerous other
examples of how the arbitration
process can assist clients and
complement the collaborative
divorce process. As counselors,
we should be mindful of harms
that follow litigation and counsel
our clients regarding out-of-court
alternatives, including creative
and customized
uses of the
arbitration
process.
Author:
Alex Caballero –
Sessums Black
Caballero
Ficarrotta
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