Step Five: Time to Negotiate!

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“The dog’s agenda is simple, fathomable, overt: I want. “I want to go out, come in, eat something, lie here, play with that, kiss you. There are no ulterior motives with a dog, no mind games, no second-guessing, no complicated negotiations or bargains, and no guilt trips or grudges if a request is denied.” 
― Caroline Knapp

It is a tradition in my family that, when we receive a new and somewhat complicated item, we often dive right in to assembling it without ever reading the instructions.  This has often been to our own peril.  The instructions are there to make your life easier.  The same is true for negotiations.  Hopefully you have had an opportunity to read the first four steps in the process as they are there to make the day of negotiations much easier.  As a review, before you ever come to the negotiations table you want to assess your interests and the interests of the other parties.  You then want to brainstorm options to meet the interests of the parties.  You must then research the options to determine which ones are feasible and how well they meet your interests and the interests of the other party.  Finally, before you begin the actual negotiations, you want to make sure that the ground rules of the process have been agreed upon.  Once all of this is completed, it is time to negotiate.

You are well prepared for the negotiations by knowing your interests, your options and the tools that will get you where you would like to be.  You must keep in mind throughout the actual negotiations that the ultimate goal is to reach an agreement or to know that you made your best effort but that an agreement was not possible.  Not all negotiations will result in an agreement because one side or the other felt that they could do better without the agreement.  However, if an agreement is possible you want to continually work toward the end goal.

Some feel that an agreement is only possible if everyone gives up something and no one leaves with everything they want.  I find this type of “search for the lowest common denominator” type of negotiations to be defeatist.  While compromise is an important part of negotiations, by working collaboratively toward meeting the interests of the participants, the parties can often find ways to expand the pie and meet the key interests of everyone.  It is true that at times each side may have to compromise on some item that they wanted, these decisions can be made in the spirit of reaching a deal that will work for everyone.  Some key elements to negotiations are to keep your emotions in check and keep your focus on the end results.  It is often easy to become frustrated when the other side uses negotiation techniques that are counter-productive such as bullying, dishonesty, or focusing on the past as a victim.  However, with some strategic planning you will hopefully be able to stay at the table and reach a satisfactory agreement even with the most difficult party.

The first step is to make sure that everyone has agreed to the issues to be decided.  In mediation this is done by setting out the agenda.  Even if a formal agenda is not decided upon, it is good for you to have with you a list of the items that you need addressed.  The fastest way to destroy an agreement reached after long negotiations is to suddenly raise a new issue that has never been discussed until after the parties are concluding the negotiations and are ready to sign an agreement.

It is often good to start the negotiations by considering if there are items where the parties have an agreement or are close to an agreement in priciple.  In a divorce if both parties agree that the children should spend equal time with each parent then this is an agreement that can be checked off the list.  The parties may still need to discuss and agree upon the actual time sharing schedule, but the interest of the children spending equal time with each parent is a major decision.  By reaching the easier agreements first you will develop some momentum towards addressing the harder issues.

Often inexperienced negotiators will ask “who should make the first offer?”  There is some debate on this topic, with some experienced negotiators believing that the person who makes the first reasonable offer has established an “anchor” and is in a better position, while other negotiators prefer to allow the “other” party to make an offer so that they can counter close to their position and pull the first party to their ground.  Entire books have been written regarding these strategies of negotiation.  However, in the case of principled negotiations, the reality is that if each party is motivated to find an agreement then the order of the offers will not have as much effect as the reasonableness of each side to consider the interests and positions of the other.

As the negotiations move forward there are some strategies that help keep the process on track.  The first is perhaps the most important.  This is to keep your focus on interests and energy toward resolution.  When you begin to feel anxious, angry or any negative emotion, step back and take a minute to process.  The biggest impediment to productive negotiations is often the visceral reaction.  For example, in a divorce negotiation if you ask for equal time sharing and your spouse responds by attacking you and criticizing the fact that you never took an interest in the children before and proposes that you should only have every other weekend with the children, it would be easy to respond to the attack and argue about who took care of the children more or attack back by saying that your spouse was always controlling of the children and never let you be a part of their lives.  This will cause the negotiations to spiral into a battle for which there will never be a winner.  The better response would be to take a minute to absorb what was said and think about your reply.  Consider your interests (and your spouse and children’s interests) in the issue and develop your response.  You may find that agreeing with your spouse that you did not put enough time into parenting in the past but discussing how you want to change this and feel that the children would benefit by having two actively involved parents is a better approach.  Look at the full calendar and discuss how the time can be managed to allow each of you to have the most time with the children.

It is often also easier to consider each agenda item individually.  Work out one item before moving on to the next.  This will allow each party to focus their attention on the interests involved and avoid “cross contamination” of very sensitive or emotional items with the ones that may be easier to address.  Keep in mind that not all negotiations must be resolved in one day.  While simple issues may be addressed in one sitting, complicated negotiations such as divorce or other family issues often require several sessions to come to a complete resolution.  If the parties try to cram all the negotiations into one day they may find that they are reaching agreement only to end the emotional roller-coaster or out of sheer exhaustion.

If certain issues seem impossible to resolve consider bringing in additional help.  A respected neutral family member or spiritual leader or a professional mediator may assist the parties to break an impasse and reach a final resolution to the issues.   Be cautious that the person selected understands that their role is to be a neutral facilitator of the conversation and not a “judge” or arbiter of the conflict.  The confusion of the roles of a neutral is why it is often better served by a professional.

 

COLLABORATIVE LAW TRAINING COMING TO SARASOTA & BRADENTON, FLORIDA

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Next Generation Divorce of Sarasota & Manatee proudly presents Interdisciplinary Family Law Collaborative Training”

If you believe, like many of your fellow professionals, that there must be a way to help people through the divorce process without all of the anxiety, stress and emotional turmoil of litigation, then you should join the forward thinking group of professionals practicing in Collaborative Law.

We are happy to announce that we are bringing Collaborative Law Training to Sarasota and Bradenton, Florida through a training being offered by Next Generation Divorce, our local Collaborative Law Group.

This training is for Attorneys, Psychiatrists, Psychologists, Social workers and LMHC Professionals,

Financial Planners & Accountants Interested in helping clients who want to have a divorce without litigation

At this unique training you will learn:

¨ The basics of the collaborative process

¨ The Skills to begin a collaborative case

¨ The Protocols developed for Family Law Cases

¨ The ethical considerations when working in the collaborative model

¨ The skills to work as a Collaborative Team

¨ The most powerful ways to deal with challenging situations

¨ The best ways to assist clients through collaborative process

Where: Holiday Inn, Lakewood Ranch

6231 Lake Osprey Drive,

Sarasota, FL 34240

Discounted Rooms available for out of town participants ($99 / night)

When:     Friday May 16 & Saturday May 17, 2014

8:30 a.m. to 5:00 p.m.

Registration begins 8:00 a.m.

Cost:        $495 if registered before April 25, 2014 / $545 if registered after April 25, 2014

Includes continental breakfast, lunch and afternoon snacks each day

Trainers: Collaborative Law Training Associates, Inc. of Atlanta, GA.

Seats are limited so please respond early!  We know this will be a sold out event.

Pending approval of Florida Legal, Mediation, Mental Health and Financial Professional Continuing Education units.  This training meets the requirements for membership in local Collaborative Law Group.

For a registration form or further information, please contact me directly: Sharon O’Day, soday@odayresolutions.com / (941) 228-8571

 

 

A Cautionary Tail

Lawsuit: A machine which you go into as a pig and come out of as a sausage.

Ambrose Bierce

The front page of the Sunday Sarasota Herald-Tribune was filled with an extremely sad story entitled Love & Lawsuits, by Barbara Peters-Smith.  (http://www.heraldtribune.com/article/20140406/ARTICLE/140409778/2416/NEWS?Title=First-came-love-Then-the-litigation-)  The subtitle says it is the story of “a Longboat Key couple found true love late in life.  But what might have been a happy ending has instead morphed into an epic lawsuit with millions of dollars on the line, and long, bitter legal arguments made mostly by strangers.”    The story covers much of the front page and two full interior pages and I highly recommend that it be read in full to have a complete understanding of the facts and issues.  For purposes of this brief post, the important facts are that after many happy years of marriage, allegations have been made that the elderly couple suffered from dementia and that relatives began to take advantage of them financially.  Both the Husband and Wife had attained some level of wealth, although the Wife was substantially better off than the Husband.  The allegations are that the Husband’s family members then began to take advantage of the couple and had transferred millions of dollars from the Wife, through the Husband to the Husband’s relatives.

For purposes of this post, the cautionary tail that I see is how the internal problems of this blended family have turned into a very public and very expensive legal battle, destroying any hope that the couple had to live out their final years in happiness together.  The family members have now divided the couple and each lives near relatives but apart from each other.

On one side it is easy to say that this couple had done everything right as befitting their wealth.  They had a prenuptial agreement and estate planning documents.  They reviewed and updated these documents as needed.  However, the allegations are that by 2005 the Wife and perhaps the Husband were suffering from early stages of dementia and some relatives began to take advantage of them.  My first concern from this is why did it then take six years for any relative to realize what was going on and intervene.  I do not mean this to be as judgmental as this may sound.  I realize that every individual and every family is different in how they address financial issues, but in this case perhaps the long costly court battles could have been avoided had there been more direct involvement and conversations when concerns were first noticed of the couple’s failing health.

My second concern is that mediation did not take place in this case until after it had been pending for over two and half years.  The mediator in this case is extremely professional and one of the best around.  Unfortunately the case did not settle.  The timing of a mediation is a careful balancing act.  Often if the mediation is set too early the parties may not understand the full ramifications of the case and be unwilling to settle.  However, if it is set too late, after each side has become cemented in their positions and invested vast amounts of money in the litigation, they may be too entrenched to consider settlement.  However, mediation can begin early and continue throughout litigation.  Much of the issues provided to the judge can be resolved through careful mediation.  There does not appear to be other forms of alternative dispute resolution services employed in this case.  The end result is a legal battle played out in public and the concerns for the elderly couple seems to have been lost in the process.

The law suite was filed in May 2011 and now has 1,675 docket entries (that is documents filed, orders issues, or notices of court hearings, etc.)  There are fifteen lawyers involved in representing parties to this case.  The case will have taken over three years from start to finish and that does not include possible appeals from the final decision.  Two of the defendants have died and one of the previous attorneys is now allegedly suffering from dementia as well.  Ours is a wonderful legal system but this case shines a bright light on the deficiencies of the system.  I have seen divorces take on a life of their own and spiral out of control.  It appears that this very sad guardianship case has done the same.

How to save money on your divorce.

$“Civility costs nothing and buys everything” Lady Mary Wortley Montagu

“Be prepared and be honest” John Wooden

One of the most common questions I am asked during an initial consultation with a new client is “how much is this divorce going to cost me?”  I completely understand the concern that most clients have about the financial costs involved in a divorce including the costs of the attorney, other professionals, and the court fees.  There are other costs that you should consider as well, such as the time away from work or family, as well as the emotional and psychological costs to you and your family.  So, the proper question to ask is how can you minimize all of these costs associated with divorce?  Here are my top five suggestions:

♦     Prepare!  The number one thing that anyone can do before beginning the divorce process is research and prepare.  You want to learn all that you can about the process and your options.  You want to learn about options such as mediation and collaborative divorce.  You also will want to also know as much as can about your family’s finances.  A good list of documents that you should have available can be found here.  These are the Mandatory Disclosure documents in Florida and are a comprehensive list of documents that will give you a good picture of your family’s income and expenses.  In addition, preparing a family budget will give you a good idea of your family’s income and support needs after the divorce. You will also want to prepare a list of your family’s assets and their net worth as well as a list of the outstanding debts and liabilities owed by your family.  A good way to consider all of these issues is to prepare a Financial Affidavit form which asks you to consider your income, expenses, assets and liabilities.  (A Florida Financial Affidavit can be found here.)

♦     Fix your priorities.  Everything does not have to be a battle.  If you have children, your first priority should be to shield the children from the litigation and emotional strain of the divorce.  Your next priority should be to move through this process with as little emotional and financial suffering as possible.  It is often easy to let your emotions take control over the process and make decisions out of anger or frustration.  This can often be a costly mistake.  With the goals of shielding the children and obtaining a smooth divorce you can then prioritize the issues of your case easier.  Remember, the less you disagree about, the less the divorce will cost you.  If you find setting your emotions aside as you negotiate difficult, you may want to consider a hiring a counselor or coach to help you through the divorce process.

♦     Negotiate!  The costs involved in a litigated divorce can be staggering.  It is not unusual for a litigated divorce to cost tens of thousands of dollars for each side.  And this does not consider the destructive emotional costs involved in litigation.  The most efficient way to avoid the extreme costs of litigation is to negotiate early and often.  As you negotiate keep in mind your priorities so that you don’t become embroiled in a fight over certain issues simply because your spouse “pushed your buttons”.  It is also important to keep in mind that the research you conducted early will allow you to have a stronger position in the negotiations as you will be well informed about the reality of your family’s financial situation.

♦     Consider alternative forms of resolving the case.  If you and your spouse are able to negotiate effectively alone then this can result in an extremely low cost divorce with the attorneys only involved in drafting and reviewing the agreement and filing it with the court.  If you need more help with the negotiations consider hiring a qualified mediator or collaborative attorney to assist you with the negotiations.   By avoiding litigation, you are eliminating the high costs of depositions, court hearings, expert witness fees, and other fees associated with litigation.

♦     Be conservative with your professional’s time.  If you hire a professional mediator or attorney to assist you with your divorce, you must first ensure that you enter into contract with the professional that outlines exactly how you will be charged.  In almost all cases the contract will detail hourly billing for the professional’s services.  You now have control over how much the professional charges by how much you require of their office.  If your attorney requests you provide documentation required to provide to the other side, then gather the information requested, organize it and provide it to the attorney in an efficient manner.  The same goes for forms that your attorney requests you fill out.  Also, if you have questions, it is often better to keep a list and once a week send an e-mail with the list of questions and a request that you set a time to speak to your attorney to discuss these.  The attorney may be able to answer many by return e-mail or may find that setting an appointment to speak is more efficient.  In either case, your attorney will have an opportunity to properly prepare for the questions and answer them in the most efficient manner.   Also, be aware that many attorneys have paralegals that can assist you with basic work at a much lower hourly rate.

There is no “standard fees” for a divorce in most cases.  And there may be aspects of the costs your divorce over which you do not have control.  In some cases one spouse may be unwilling to negotiate in good faith and want to force the case to a trial.  However, the more responsibility you can take over the aspects of your divorce, the less the overall cost will be.

Things a Judge Cannot Do…

sonia sotomayorJudges can’t rely on what’s in their heart. They don’t determine the law. Congress makes the law. The job of a judge is to apply the law.  Justice Sonia Sotomayor

 

 

 

Throughout the years that I have been practicing in Family Law, I have had a few clients who refused to negotiate and would instead demand to have “their day in court”.  Their theory was always that, once the judge heard their story, the judge would be so moved that my client would get whatever it was they wanted.  I often had to inform my clients that, no matter how moving their story was, the judge just could not give them what they wanted.  In most cases this was because the law did not provide the relief they expected or thought was fair.  Here are a few of the things that the law in Florida does not provide for:

Visitation or “shared parenting” of pets.  Under Florida law, Fluffy is just a piece of property to be distributed to one party or the other.  I love my dog and I love my cat and I have even loved my daughter’s snake, rats and other various creatures that have filled our house with love.  If I found myself in a situation of a divorce, I would want to make sure that my daughter and I could continue to have regular interaction with our pets (although I admit, some more than others).  However, under the equitable distribution laws, the pet is given a value and that value is placed in the column of the party receiving the beloved pet.  The judge simply cannot order that the other party have visitation or any other “contact” with the pet after it is “distributed”.

College tuition or child support past high school.  Except in the most extreme situations of continued dependency, Florida law provides that child support ends when the child turns 18 years of age unless then child remains enrolled in high school with an expectation of graduation prior to their 19th birthday.  Even if the child remains enrolled in high school but will not graduate until after their 19th birthday, child support does not normally continue.  This is different in some other states, but Florida does not provide for college support or support past 18 years of age in most cases.

Continued joint ownership of a family business.  Florida law states that once you get divorced the idea is to separate such things as ownership of property and businesses.  Therefore, if the parties are not in agreement, the court will not order that they remain co-owners of the family business.  This means that one party is more than likely going to have to buy out the other party.

This is just a sample.  There are many more examples of things a judge cannot order because the law does not provide the option.  There may be exceptions to any one of these rules (after all, every good rule has an exception).  However, in most cases, Judges are not going to create new law or make a special exception for your family.  The one way to ensure that you achieve these and other creative solutions that meet your family’s needs is to come to an agreement through negotiations.  The best way to increase the chances of a negotiated settlement is to start from a non-adversarial process such as mediation or collaborative law.  With the skilled assistance of a good mediator or collaborative team, your family can come up with very creative solutions that meet all of your family’s needs and desires.  This is why alternative ways to resolve these disputes is often referred to as the way to find “win-win” solutions.

Best Lawyer Quote

young gandhi“My joy was boundless.  I had learnt the true practice of law.  I had learnt to find out the better side of human nature and to enter men’s hearts.  I realized that the true function of a lawyer was to unite parties riven asunder.  The lesson was so indelibly burnt into me that a large part of my time during the next twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases.  I lost nothing thereby — not even money, certainly not my soul.”

Mohandas K. Gandhi, 1957 from “An Autobiography: The Story of My Experiments with the Truth”

Although there are many quotes from great lawyers that remind us of our calling to serve and assist our clients, this is my favorite.  At a time when lawyers are too often the punch line in jokes, it is, I believe, helpful to remember the true good that the vast majority of our profession does on a daily basis.  I aspire to be a peacemaker for those who have hired me as a professional and to serve them in finding resolution to conflict.

Top Twelve Questions to Ask your Divorce Lawyer

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Judge a man by his questions rather than by his answers”  Voltaire

I have had many perspective clients come to me for an initial consultations.  During these sessions, which often last for more than an hour, the perspective client often wants to tell me a bit about their life and the reason for their divorce and then they want me to explain the law to them and how it applies to their case.  At the end of the consultation I ask the perspective client if they have any question for me.  The most common questions are “how much will the divorce costs” and “how long will this take”?  It is unfortunate that there are rarely any other questions.  Getting divorced is an extremely serious and usually stressful endeavor.  The relationship you have with your attorney and their approach and expertise in handling your case can make all of the difference in how the case proceeds and the ultimate outcome of your divorce.  Remember this is a “job interview” and you are the one hiring the attorney.  Here are the top twelve questions to ask any attorney you interview for your divorce.

  1. Are you trained in collaborative law?  If you are interested in having a divorce that does not involve litigation and that puts your family’s interest and involvement first, consider a collaborative divorce.  However, to have this option available to you and your family, you must first find an attorney that is trained in collaborative practice.  Many attorneys are now listing collaborative divorce on their website because they know this is good marketing.  It is up to you to make sure they are actually trained and qualified in this area of practice.  Even if your case is not going to proceed in a collaborative model, hiring an attorney who is collaboratively trained will help ensure that the attorney understands the principles of problem solving and putting the needs of the family first.  If you are not familiar with collaborative law or collaborative divorce, please check out my blog posts on this subject. 
  2. Are you Board Certified (or have special certification in your state)?  Each state has their own credentials to identify attorneys who have attained a certain level of expertise and specialization in specific areas of the law.  Board Certification is the Florida Bar’s “legal expert” status and only 285 family law attorneys have attained these credentials.  In order to become Board Certified in Marital & Family Law in Florida, the attorney must have been practicing a minimum of five years with at least 50 percent of their cases involving family law disputes, during the five years prior to the application for certification they must have represented at least 25 clients in contested marital cases with at least seven having been submitted to the judge for decision, they must have completed at least 75 hours of continuing legal education in the area of family law, they must receive a passing grade on a very rigorous examination, and they must satisfy a peer review assessment for ethics and professionalism.  While there are many extremely well qualified attorneys that have chosen not to apply for certification, a simple way to screen for qualified attorneys initially is to look for Board Certification when considering what attorney to hire.
  3. Are you active in the family law sections of the local and statewide bar associations?  One of the best way to determine if a potential attorney is up to date on what is occurring in the area of family law is to consider their involvement with other attorneys in their area of practice.  These meetings are a good way to keep up to date on the latest changes in the law and most recent court decisions.  Perhaps more important, these meetings allow the attorneys to network and develop professional relationships.  I have had potential clients ask if I am “friends” with the opposing counsel in their case, and seem concerned if I tell them that I have a friendly professional relationship with this person.  In fact, the best way to ensure that your case will be handled efficiently and professionally is if the two attorneys can work cooperatively towards a resolution.  You should require that any attorney you select is active in their local bar association and collegial with their fellow members of the bar. 
  4. What other professional groups are you a member of?  There are many local and national groups that family law attorneys can become active in which will further enhance their knowledge, skills, and commitment in family law.  These include the Family Law Section of the American Bar Association, the International Academy of Collaborative Professionals, the American Academy of Matrimonial Lawyers, and the Associations of Family and Conciliatory Courts.  In addition, you can investigate local organizations that allow for collaboration and networking among family law professionals in the legal, financial and mental health fields.  Involvement in these types of organizations by an attorney will demonstrate a varied knowledge in the interrelated disciplines often used in family law cases. 
  5. What are the most recent continuing education courses you have taken in marital or family law?  Attorneys are required to maintain a certain level of continuing education but you will want to investigate if the attorney has completed these course in the area of family law and if they are up to date on the most recent changes in the law.  One of the most rapidly changing area of law has consistently been Family Law and if your attorney has not kept up with the changes they will not be able to properly represent you.
  6. Have there been any changes in the law recently that will affect my case?  It is always good to ask specific questions on your case and with this questions you will be able to evaluate how familiar an attorney is with proposed or recent changes to the law that may affect your case. 
  7. What would you say is the best strategy for my case?  With this question you will be able to evaluate if the attorney considers a litigation strategy, a negotiation strategy or a duel track (litigation and negotiation tracks running simultaneously) to be the best approach to your case.  Look for clues that will indicate that the attorney is setting the case in a very adversarial position such as advice to cancel insurance, close bank accounts or credit cards, make significant changes to existing parenting plans, or highly adversarial positions.  In some jurisdictions these actions are not allowed, but in others they are permitted but will clearly set the case up to be very adversarial.  This is not to say that in certain situations such advice may be necessary, but you must evaluate if your case is appropriate for such positions. 
  8. Do you encourage me to speak with my spouse during the time that the case is pending?  Some attorneys tell you not to speak with your spouse and to allow all communications about the divorce to go through their office.  Others will encourage you to continue to negotiate with your spouse and try to resolve as much as you can without attorney involvement.  Based upon the answer to this question you will be able to judge the position of the attorney towards the clients having control over the case.  While it is true that in some cases premature negotiations may be harmful to your case and in others there may be legitimate concerns about domestic violence that require limited contact between the parties, you should be cautious about choosing an attorney that insists on a black and white “no contact” rule.
  9. What is your hourly rate?  What is your retainer? And how do you bill for my case?  These questions should be clearly discussed with the attorney and should be explicitly detailed in the retainer agreement that both you and the attorney sign.  You should clearly understand how the initial retainer will be applied in your case and what are the expectations for replenishing the retainer.  The last thing you want during this stressful time is to be surprised with a demand for a large retainer replenishment just days before you are scheduled to attend a full day of mediation or trial.  Have this conversation in the beginning and keep the lines of communication regarding fees and retainers ongoing throughout the relationship with your attorney.
  10. Who will be working on my case?  Will the case be handled predominately by a paralegal or associate?  The answer to this questions will be intricately tied to cost as well.  If the attorney will handle everything personally then you will be most likely be paying for higher level services.  If an associate or paralegal is to complete much of the work, make sure you have an opportunity to meet these professionals and have confidence that you will be able to work with them as well as the attorney.
  11. During what hours can I reach you directly?  How long will I have to wait for a return call from you or your office?  Again, this question is specific to how the law office works.  Understand the office’s policy for return calls, e-mails and emergencies.  Make sure your expectations are consistent with the policy of the office. 
  12. How can we keep the cost of the divorce down?  Divorce can often be a very expensive.  However, there are ways for you to keep the cost of the divorce down.  My next post will cover this in detail but for now make sure that you follow the directions of the attorney efficiently and discuss with the attorney the strategy of your case to minimize the costs. 

You will notice that the questions I do not list are “how much will this divorce cost?”, and “how long will this divorce take?”  The total cost of a divorce is impossible to predict and any attorney that tells you exactly how much it will cost if he or she is doing hourly billing is not being honest.  Some attorneys will offer a “flat fee” divorce but in my experience these are usually for uncontested preparation of a settlement agreements and if the case results in on-going negotiations over the agreement or becomes contested then the costs will rise.  If you decide to go with a flat fee divorce make sure there will not be added costs for additional hours spent negotiating.  Similarly, “how long will this take” is not something an attorney has complete control over.  If you have an uncontested divorce with a simple settlement agreement signed by both parties the attorney may be able to predict the time until a final judgment is issued.  However, your attorney cannot control the level of cooperation of the opposing side nor the delays that may exist in the court’s calendar.  This is one reason why the collaborative approach is often best, as it allows the parties to work cooperatively towards an appropriate resolution without the delays caused by the court system or uncooperative litigants.

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

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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.