In Collaborative Law, each party retains a separate, specially trained attorney and the lawyers work together with their clients and other professionals (including financial neutrals, coaches and child specialists) to resolve a case without going to court. The collaborative process allows the parties to design a settlement that meets their family’s needs, while minimizing high levels of conflict. The parties and their lawyers may also utilize mediation, conciliation or arbitration as part of the process.
In addition, the parties agree to conduct the matter with respect, honesty and good faith. The attorneys, as a matter of ethics, will disclose all facts relevant to the case and the parties’ goals and objectives in the settlement negotiations. The attorneys will not use negative or insulting language, nor will they threaten to go to court. The participants also agree to engage in good-faith problem solving and creatively seek “win-win” solutions that meet the reasonable needs of both parties. The attorneys are prohibited from representing either client in a lawsuit against the other, and if any of the parties choose to litigate, both of the attorneys must withdraw from the case.
Lawyers are required to provide each other and the clients with periodic status reports on the progress of the collaborative case. The report must indicate whether the collaborative process is ongoing or concluded. In the event a dispute arises as to the status of the case, the court is not permitted to consider communications that are not included in the status report.
It is important to note that the collaborative process can be a lengthy, complex and costly process. Nonetheless, it is less expensive and faster than litigation and provides the parties with more control of the outcome. Furthermore, it is a more private and respectful process than traditional litigation. It also provides the parties and their families with more time to heal following a divorce or separation.
Collaborative Law has been successfully used to resolve cases in many different areas of the law, including divorce, parenting, real property, probate, guardianships and commercial disputes. Although it is not an appropriate process for every legal dispute, it is a valuable tool for those who wish to settle their disputes outside of the court system.
Unlike mediation, which is designed for low-conflict cases, Collaborative Law can be utilized for all types of cases ranging from complex to simple. However, it is best suited for those cases that can be resolved through negotiation and/or mediation rather than through a trial or other adversarial proceedings.
The collaborative law practice is governed by the Rules of Professional Conduct for the Florida Bar, and members are expected to take active steps to educate themselves on the process and participate in collaborative training. Although nothing stops anyone from advertising themselves as a collaborative law attorney, the author believes that our Supreme Court should create a system for certifying collaborative lawyers who meet certain standards similar to that which is in place for our certified mediators.