The Collaborative Law Process Act: the future is now.

• Author: Merlin, Robert
• Position: Florida

The Collaborative Law Process Act was passed by the Florida Legislature and was signed into law by Gov. Rick Scott on March 24, 2016. (1) This article explains how the collaborative process works, the history and purpose of the act, and why family attorneys should use the collaborative process to represent their clients in family matters. Rules of procedure and professional conduct were presented to the Florida Supreme Court on September 16, 2016, and they were pending before the court at the time of writing this article.

In 1990, a family attorney in Minnesota, Stuart G. Webb, wrote a letter to Minnesota Supreme Court Justice A.M. "Sandy" Keith explaining an idea that he had for using a process to help couples dissolve their marriages in a private and humane way, outside of the judicial system. His vision was that family attorneys would use their negotiating and communications skills to help the parties resolve their matter themselves, without a judge dictating to the family how they must live their lives. Webb's vision was that the attorneys would not represent their clients in contested litigation, which would require the attorneys to have the "analytical, reasoned ability to solve problems and generate creative alternatives and create a positive context for settlement." In 1992, psychologists in California, Peggy Thompson and Rodney Nurse, and some lawyers and financial professionals were creating a similar system to help couples resolve their differences in a supportive and constructive manner. In 1993, the professionals in California learned about the collaborative process that Stu Webb had created, which led to the blending of the two concepts. The process has grown from that small, humble beginning with one man's idea to a process that is now being used throughout the United States and in 24 countries. (2)

The collaborative process is an alternative dispute resolution process unlike any other ADR process in a number of ways. Each party hires their own attorney, who is typically specially trained in the collaborative process, although that is not a legal requirement at this time. The only "requirement" of the collaborative process is that the attorneys agree in advance that they will not represent the clients in contested litigation if the process is terminated or it otherwise breaks down--the collaborative attorneys are disqualified from representing their clients in contested litigation if the collaborative process is terminated. No one, not the clients or the professionals, can be forced to utilize the collaborative process because it is voluntary for both the parties and the professionals. While it is possible that litigation could result if the parties are unable to resolve their case, the threat of litigation is not used during the collaborative process. The result of the disqualification requirement is that the attorneys are dedicated to helping the parties resolve all of the issues in their matter. Consequently, the attorneys are rarely the cause of the negotiation process breaking down, unlike in some litigation cases in which an attorney may be fueling the fire, rather than trying to help his or her client to resolve the matter.

There are no hearings or formal discovery requests in the collaborative process. Everything is done outside of the judicial system, except in litigated cases that are stayed to use the collaborative process. There is no need to take any formal action to obtain discovery because one of the basic tenets of the collaborative process is that it is transparent, meaning that documents and information are voluntarily provided and exchanged between the clients. If a party or another participant feels that a document is needed, the other party voluntarily agrees to obtain the document without the necessity of issuing a subpoena to obtain the document. The discussion shifts from a party possibly being obstructive to how the document can be obtained and how long it will take to obtain it. This results in a saving of time and money for the parties.

The parties and professionals meet together in meetings that are usually scheduled for two hours and for which there is an agenda. All of the participants know in advance what topics are going to be discussed during the meeting. Each attorney will meet with his or her client to prepare for the meeting. The pre-meeting conference with the client gives the attorney an opportunity to educate the client on the issues that will be discussed during the joint meeting and to strategize how they will approach each issue.

The meeting agenda includes how the professionals' fees will be paid. That is typically a topic to be addressed and resolved during the first meeting. The ultimate responsibility for the professionals' fees may not be resolved during that meeting, but the source of funds to be used to pay the fees and the process for paying the fees will be discussed and resolved by the parties during that first meeting. This typically eliminates the arguments over the payment of fees that occurs in so many litigated family cases. The experience of...