Perhaps you have heard of the Collaborative Process but you are not quite sure what it is and whether it is something you should consider for your practice. If you practice family law or you are a forensic accountant or financial planner, it would be in your best interest to learn about the Collaborative Process.The Collaborative Process is an alternative dispute resolution method that was created in 1990. The concept is so successful that it is now practiced throughout the United States and in more than 20 countries around the world. Because the Collaborative Process is mostly used to handle family disputes, this article will be limited to that area.
Through the Collaborative Process, each party hires a specially trained Collaborative attorney. Specially trained mental health professionals/facilitators are used as well. In Florida, virtually all of the Collaborative cases use one neutral facilitator for both of the parties. Frequently, the parties also retain the services of a specially trained neutral financial professional, either a forensic accountant or a financial planner.
The Collaborative professionals work together as a team to help the parties resolve all of the issues involved in their family dispute. That could be a dissolution of marriage, a paternity case, the negotiation of a prenuptial agreement or the negotiation of a cohabitation agreement, for instance.
The parties and the professionals sign a contract called a Participation Agreement that spells out the terms of the relationships between everyone. The Participation Agreement includes the following provisions:
- The process is transparent – neither side will hide any assets or income. All documents are shared and are exchanged voluntarily. There is no need for formal discovery requests.
- The status quo is maintained throughout the process. Both of the parties agree to maintain the status of all of their assets, insurance policies and financial systems. If a party wants to change something, it must be done by mutual consent of the parties.
- The parties and professionals meet together periodically in scheduled meetings with an agenda to identify all issues that need to be resolved, to discuss potential ways to resolve those issues and to help the parties formulate the best resolution for them. The parties, not the Collaborative professionals or a judge, decide how each issue will be resolved.
- The parties and professionals will be respectful of each other. There will be no threats of litigation or any other type of threat.
- Information will be shared between the parties and the professionals. The information is confidential outside the Collaborative Process. Nothing is filed in court until the case is settled, so the public does not know what the parties are doing. Significantly, the parties’ financial status is not being shared with the public.
- The process is voluntary. Either party may terminate the Collaborative Process at any time, but if the process is terminated, the Collaborative attorneys will NOT represent the parties in contested litigation. The Collaborative attorneys are dedicated to helping the parties resolve their case.
Typically, the parties save money by using the Collaborative Process. There are never battling experts in the Collaborative Process. The facilitator is responsible for helping the parties resolve their parenting issues and preparing a parenting plan. Instead of using two attorneys at high hourly rates, the neutral facilitator, who is more qualified to address parenting issues, works with the parties at a much lower hourly rate.
The use of a neutral financial professional is more efficient for the parties than using traditional battling forensic accountants. The financial professional will do the exact same work that he or she would do in a litigated case, but there is cooperation from both sides to gather documents and information and the financial professional will not have to worry about being deposed or testifying in court. The financial professional will meet with each party or relevant third persons to gather necessary information and documents, which are voluntarily made available.
One of the most beneficial aspects of the Collaborative Process is how the professionals’ fees are handled. Each professional, even the facilitator, receives a retainer. Each professional establishes his or her own hourly rate and retainer requirement. The parties understand, from the Participation Agreement, that all of the Collaborative professionals must be paid. Although this is the case whenever a client signs a retainer agreement in other types of matters as well, the Collaborative Process is different because the payment of a professional’s fees is an appropriate subject to be discussed during a joint meeting with the parties and the Collaborative professionals. The result is that it is extremely unusual for a Collaborative professional to have a receivable. In the more than thirty Collaborative cases I have handled, I have had only one receivable. Nationally, 90 percent of cases that start Collaboratively finish Collaboratively, so there is a very high likelihood that the more Collaborative cases you handle, the fewer receivables you will have.
Society is changing. The public is demanding a better model for handling divorces and other family disputes. If we, the family attorneys and financial professionals, do not provide a better model for the public, they will choose other ways to resolve their family disputes, without using our services. The Collaborative Process is the solution to that dilemma. If you become Collaboratively trained and handle your family cases Collaboratively, you will find that your professional practice is much more rewarding, both financially and emotionally.
I hope that you will join me and the more than 500 Collaborative professionals in Florida who have realized that the Collaborative Process is the wave of the future and is a great alternative to traditional litigation for everyone involved, including the professionals.
Robert J. Merlin is a Florida Bar Board Certified family law specialist. Merlin provides legal advice and representation on family law matters in the areas of dissolution of marriage (divorce), timesharing of children and parenting plans, child support, alimony, paternity, domestic violence, same sex dissolutions and the negotiation and preparation of pre-nuptial and post-nuptial agreements and, same sex and unmarried couple partnership agreements. Merlin can be reached at 95 Merrick Way, Ste. 420 Coral Gables, FL 33134 (305) 448-1555 www.merlinlaw.com
South Florida Legal Guide 2013 Financial Edition