Contemplating a Collaborative Divorce?

By: Nicole Goetz, Esq.

For many, a divorce is often one of the most disruptive events that they may experience, and when that dispute plays out in court, the expense, stress and public nature of the conflict simply intensifies the negative experience. There is a process that can be a kinder, gentler option for the parties, as well as their children, and that is called the “Collaborative Law” process.

What is Collaborative Law?

Collaborative Law is an alternative dispute resolution (ADR) method geared to lessen the impact of adversarial litigation on families, whatever the nature of their family law dispute. In essence, it is a contractual agreement by both parties — and their collaborative counsel — to avoid litigation or the threat of litigation in reaching a resolution to a disputed issue.

While Collaborative Law is not a new concept, having been around since the 1990s, Florida formally recognized this voluntary form of dispute resolution in 2016, joining almost half of the states in the US by enacting its version of the Uniform Collaborative Law Act. As stated by the Florida legislature, it is:

“a unique nonadversarial process that preserves a working relationship between the parties and reduces the emotional and financial toll of litigation.”

While Collaborative Law has its share of critics and it is certainly not appropriate for every case, it can be an effective method for those parties committed to positive conflict resolution. Before embarking on the collaborative process, though, it is important to know what you can expect.

What is the collaborative divorce process?

Family law issues are a prime candidate for Collaborative Law given the highly emotional nature of the disputes. When handled correctly, the Collaborative Law process encourages participants to think holistically rather than taking a positional approach when resolving the issues they face. This shift in thinking is not merely aspirational but is a primary feature of the collaborative process. The process also encourages parties to design their own resolution with the assistance and guidance of the entire team of professionals who are knowledgeable about and committed to the process.

Second, a collaborative divorce is an entirely voluntary process governed by a collaborative participation agreement. The agreement may address many issues and is signed by the parties, their attorneys, and any experts. In the event an agreement cannot be reached, the rules governing the process require the discharge of collaborative counsel and either party may withdraw from the process thereby terminating the agreement at any time.

Parties can enter into the collaborative process before litigation or even during litigation. When opting into the process during pending litigation, the litigation process is stayed, thus allowing the parties an opportunity to voluntarily resolve elements of a dispute or the case as a whole, without court intervention.

Finally, similarly to mediation, communications within the process are confidential (with limited exceptions), allowing the parties to negotiate their case freely, without fear that agreements that they may be willing to entertain for voluntary settlement will be used as evidence in a court proceeding. In fact, mediation and other forms of alternative dispute resolution can also be used in conjunction with the process to enhance the possibility the parties will reach a voluntary resolution of their dispute.

What are the differences between a collaborative divorce and a typical divorce proceeding?

When engaging in the collaborative process, you can generally expect:

• Voluntary discovery vs. compelled discovery
• Greater control over the progression of a case vs. arbitrarily imposed court deadlines, and often court backlogs and delay
• Enhanced confidentiality vs. court proceedings which are public
• Shared neutral experts vs. individual experts
• Extensive communication between participants vs. communication which is often geared solely to move a case or promote a position

Critics of the collaborative process often argue that the benefits of collaborative law are attainable in traditional litigation without unsuccessful negotiations resulting in the discharge of the parties’ counsel if a settlement is not reached. While in certain circumstances that is true, often, the threat of discharge provides a greater incentive for all involved to reach a quick and amicable resolution.

While the collaborative process can be beneficial to preserve already strained relationships, protect children, provide privacy, allow the parties greater control over the process, financially and otherwise, it is not appropriate in every case. When based on the facts of the case or the individual participants it seems unlikely there will be the commitment or ability to pursue a mutually satisfying settlement, it is not likely worth spending time or money on this process. Appropriate identification of those individuals and cases that can succeed in the collaborative process is key.

Those interested in learning more about the process and whether collaborative law may be an option in their family law dispute may contact me at nicole.goetz@henlaw.com or by phone at (239) 344-1239.