PBCBA BAR BULLETINS pbcba_bulletin_april 2018 - Page 7

ADR C o r n e r COLLABORATIVE LAW AN ALTERNATIVE APPROACH TO AN ADVERSARIAL PROCEEDING VICTORIA A. CALEBRESE This article will provide a brief overview of the Collaborative Law practice and how this process can be used as an alternative to the traditional litigation approach. Collaborative Law is a voluntary settlement process wherein: 1. Settlement by agreement is intentionally pursued as the positive outcome of legal representation. Participation Agreement setting forth the ground rules and expectations, defining each party’s role, explaining the expectation of confidentially, voluntary disclosure and “opting out” of the collaborative process. This process can begin prior to a case filing or after a case has been filed. resolution and want to preserve the assets for the family thus making the process less costly than a litigated matter. The process consists of a series of scheduled team meetings wherein all parties attend 2. The parties actively participate and follow an agenda. The end goal is to in the negotiations necessary for the reach an agreement on all elements with resolution. good faith participation in this process. It is a “everyone play nice in the sandbox approach” versus the “scortched earth” approach. Where parties have a great imbalance of power or if there is any type of abuse between the parties, they are not good candidates for the collaborative process. 3. The cooperative practice replaces Why does the Collaborative process work? adversarial techniques in litigation The collaborative model, unlike a Court proceeding, is private, and the financial It is an open and transparent process information of the parties is not made wherein the parties and all professionals public. Also, timing of the collaborative work towards the common goal of resolving process is controlled by the parties and the parties litigation in a private, expedited, not a Court docket. It is a faster process. and positive approach towards resolution. More importantly, in a divorce setting, Thus, the collaborative process requires the relationship between the parties is a team approach. In a family law setting, maintained and the families are not torn the team consists of the parties, their apart. counsel, a neutral facilitator and a neutral financial (such as an accountant). The One key element of the Collaborative neutral facilitator, usually a licensed Process is the “opt out” provision. In the mental health care professional, schedules event a party wants to withdraw from the the team meetings, creates the agendas collaborative process and proceed in the and summaries of the meetings, addresses traditional adversarial process in the Court, disputed issues before they become serious then the parties’ attorneys are terminated and assists in developing the Parenting and the parties will need to retain new Plan in family law cases. The neutral counsel in order to proceed in Court. The facilitator identifies the parties concerns, dismissal of the attorneys is a red herring lowers anxieties and focuses on the present for some lawyers. Yet, it is this provision and future and not the past. The financial that keeps the parties vested in th e process. neutral’s role is to gather the financial The attorneys in the Collaborative Law information, prepare spreadsheets and process need to make a paradigm shift cash flow analysis and educate clients from adversarial to cooperative, from past if they need help understanding these to future, from blame to impact and win/ figures. The financial neutral facilitates lose to win/win. Although each party’s the decision making process by creating lawyer is still an advocate for their client various financial options to be considered in this process and there is attorney/client by the parties. privilege, it is a difficult line to walk. In this process, lawyers are educators and problem The goal of the entire team is to advance the solvers rather than litigators, pit bulls, interests of both parties. The team focuses etc. This paradigm shift for attorneys can on the parties’ individual and joint goals be difficult to achieve. It takes a seasoned and interests and works cooperatively attorney to achieve success in this process. in obtaining all financial information, The Collaborative process does work when explores options and problem solving. This the clients want control over the outcome, process begins when all participants sign a are willing to jointly participate in a PBCBA BAR BULLETIN 7 Not every case is optimal for the Collaborative process. It takes the right parties and mindset. Florida recently enacted the Collaborative Law Process Act (Fla. Statute § 61.56) which now codifies the Collaborative Practice in the Family law statute. In addition to family law, this model can be applied to other litigation such as wills & trusts, construction law, business partnership, family/closely held business disputes. In my personal experience, I have participated in three (3) cases within the last year which were all successfully resolved using the Collaborative process. This Process can and does work. “The Collaborative law process is a unique non- adversarial process that preserves a working relationship between parties and reduces the emotional and financial toll of litigation.” 2 1 2007 International Academy of Collaborative Professionals 2 Fla. Statute 61.55 Victoria Calebrese, a board certified marital & family law Attorney is the founder of the law firm of Victoria Calebrese, P.A. who focuses on the family and preserving that family. She focuses on providing a high level of service to her clients. She also combines extensive traditional litigation experience with an emphasis on settlement and mediation for effective representation.