The Collaborative Law Process Rules: This Is How We Do It.

• Author: Merlin, Robert Joseph
• Position: Florida

On May 18, 2017, the Florida Supreme Court issued an opinion in which it adopted rules of procedure and professional conduct with respect to the collaborative process (1) to accompany the Florida Collaborative Law Process Act. (2) The act and the rules became effective as of July 1, 2017. This article explains the rules, how the act and rules will affect the practice of family law in Florida, and contains suggestions of how we can better serve the citizens of Florida.

The Collaborative Law Process Act statutorily recognized the collaborative process in matters within the purview of F.S. Chs. 61 and 742--generally, divorce and paternity actions. The enabling language of the act provided that it would go into effect 30 days after the Florida Supreme Court adopted rules of procedure and professional conduct consistent with the act. (3) Both the act and the rules are based upon the Uniform Collaborative Law Act and Rules (UCLA) that were adopted by the National Conference of Commissioners on Uniform State Laws (Uniform Laws Commission). (4)

The rules should be read and understood in the context of the public policy in Florida, as stated in F.S. [section]61.55. In that statute, the Florida Legislature, as approved by the governor, stated:

It is the policy of this state to encourage the peaceful resolution of disputes and the early resolution of pending litigation through a voluntary settlement process. The collaborative law process is a unique nonadversarial process that preserves a working relationship between the parties and reduces the emotional and financial toll of litigation. (5)

Collaborative Rule of Procedure 12.745

Being an out-of-court dispute resolution method, one may think that having rules of procedure would be inconsistent with the philosophy of the process and would not be necessary. Prior to the adoption of the procedural rule, collaborative professionals regulated themselves through a contract, known as a participation agreement. That contract sets forth how the parties and professionals will act throughout the collaborative process and thereafter. The procedural rule was adopted to create a uniformity of practice throughout Florida when the collaborative process is used in family matters that result in an action being filed in court. (6)

Rule 12.745 of the Florida Family Law Rules of Procedure was created to address the following three situations: 1) what to do if a couple chooses to use the collaborative process while a divorce or paternity action is pending in court; 2) what to do after the family matter is resolved; and 3) what to do if the family matter is not resolved using the collaborative process.

Rule 12.745 governs all matters that fall within F.S. Ch. 61, Part III, which is the Collaborative Law Process Act. F.S. [section]61.56(5) defines a "collaborative matter" as "a dispute, a transaction, a claim, a problem, or an issue of resolution, including a dispute, a claim, or an issue in a proceeding, which is described in a collaborative law participation agreement and arises under [Ch.] 61 or [Ch.] 742 ...."

Although the vast majority of collaborative matters begin before anything is filed in court, Rule 12.745(b)(1) recognizes that the collaborative process begins, "regardless of whether a legal proceeding is pending," when the parties sign a collaborative law participation agreement. F.S. [section]61.56(3) defines a collaborative law participation agreement as "an agreement between persons to participate in a collaborative law process." As explained in more detail below, new RUL. REG. FLA. BAR 4-1.19 requires that the agreement be in writing.

Typically, the collaborative process begins with a client choosing, with his or her attorney, to use that process to resolve a family dispute. While it is possible for the client's initial contact to be with a mental-health professional or a financial professional, the initial gatekeeper is usually an attorney. The other party and his or her attorney must also choose to use the collaborative process, because each party must be represented by an independent attorney. (7)

Nothing stops a couple from changing processes during pending litigation by staying the litigation to utilize the collaborative process to resolve their differences. (8) The rule provides that if the parties choose to use the collaborative process while an action is pending in court, they are to promptly notify the court of that decision after the participation agreement is signed. That notification serves as an application for a stay of the proceeding, but note that the pending matter is not automatically stayed under the rule. The best practice is for the parties' attorneys to file a joint motion for a stay of the court proceedings. It is suggested that an agreed order be submitted to the court staying the pending proceeding for between 90 and 120 days, but the attorneys should contact the judge's office to find out whether to schedule a hearing on the motion for stay. If the judge requires a hearing on the request for a stay, the attorneys and parties may want to appear together for the hearing so the judge can see that everyone is serious about resolving everything through the collaborative process. The attorneys should discuss with the judge whether status reports should be filed and, if so, how often. There should also be an understanding of how long the matter will be initially stayed and whether there should be periodic status conferences.

The rule specifically empowers the judge to require the parties and the attorneys to provide periodic reports on the status of the collaborative matter, but the status report can only indicate whether the process is ongoing or concluded. The status report may not include a report, assessment, recommendation, finding, or other communication regarding the collaborative matter. The court is specifically prohibited from considering a communication that is made in violation of the rule. The judge may consider dismissing the pending family matter because of delay or failure to prosecute, but not without providing notice to the parties and an opportunity to be heard in opposition of the dismissal.

The rule provides how the collaborative process is concluded or terminated. A collaborative matter is concluded by the parties signing a written settlement agreement resolving all or some of the disputed issues. If some of the issues are not resolved, there should be a provision in the written settlement agreement that the balance of the issues will not be resolved using the collaborative process. While not specifically stated in the rule, it is implied that the unresolved issues will either be submitted to a court for resolution, or the parties will theoretically live without resolving the remaining issues, at least temporarily.

A party may unilaterally terminate the process for any reason, with or without cause and at any time, by giving written notice of that decision to the other parties. The process can also be terminated by a party beginning a contested proceeding in court of the subject of the collaborative process, without the consent of the other parties. If an action is already pending, a party can terminate the collaborative process by initiating action in the pending litigation. Such acts automatically terminate the collaborative process and, thus, the attorneys' representations of the parties. If an attorney is discharged by the client or withdraws from representing a client in the collaborative process, the process will terminate unless that client retains another attorney within 30 days of...