ADR CORNER
Like Rollin ’ the Dice in Vegas
TAMI L . AUGEN RHODES
Two attorneys , a CPA , and a Mediator walk into a room …. Sounds like the beginning of a joke , right ? However , it is unmitigatedly serious . These four individuals agreed that we could try the case ten different days in front of ten different judges and get ten different results . The reason this is so concerning to the parties is because this involves their children , property , hopes , and dreams . It is the end of the life they thought they were building together and now , they must go through a process fraught with fear , confusion , and uncertainty where a person who has known them about eight hours – the Judge – will make a decision regarding the rest of their lives .
However , many family law practitioners are starting to believe there is a better way for Florida families to navigate their divorce . Florida has adopted the Collaborative Law Process Act , § 61.55 et seq ., which provides in part , “[ t ] he 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 .” One highlight of Collaborative Law , is that the parties , their collaboratively trained counsel , and other professionals involved in the matter enter into a Participation Agreement which ensures that no Collaborative Team member will proceed to litigation with either party should the collaborative process not resolve the matter and the parties ultimately litigate .
Collaborative Law is a process choice . Process choices run the gamut from parties sitting down for coffee together writing out the terms of an agreement on the proverbial paper napkin to lengthy , no holds barred , multi-day trials . While there are many avenues into the Collaborative process , the end result is that both parties retain collaboratively trained counsel . The core team is typically rounded out by a Neutral Mental Health Professional and Neutral Financial Professional . However , there is no limit on who can become involved in the process and join the team . This is truly a “ client-centric ” approach and the professional team and parties can bring in any other type of professional to assist in the process . For example , a particular matter may call for a child specialist or
one party may seek the assistance of a Financial Professional who is not the team Neutral Financial Professional .
I want to be clear that the Collaborative Law Process is not solely for parties who want to hold hands and sing Kumbaya . This is perhaps one of the biggest fallacies regarding Collaborative Law . Many practitioners may wonder how two people who have gotten to the point of ending their marriage would ever be able to sit down together , discuss issues rationally and respectfully , and evaluate different solutions . Whereas other civil litigation has a winner take all outcome ; family court is equitable where , absent extenuating circumstances beyond the scope of this article , neither party “ wins ” all of the assets or child timesharing .
The Collaborative Law Process allows for streamlined discovery . Specifically , the Neutral Financial Professional communicates with both parties to obtain necessary documents and discovery . People are not perfect , and the parties to the Collaborative Process are not always perfect either . However , unlike traditional litigation which can sometimes have long and drawn out disputes regarding hidden assets , protective orders to prevent discovery , and hearings to compel discovery ; the attorneys involved in the Collaborative Process are trained to address these issues head-on and assist the client in moving toward a place of acceptance and understanding in regard to the need to freely provide discovery so that any difficult or sensitive issues can be dealt with in a forthright and respectful manner . The professional team helps to create a safe space for the parties to operate within in order to accomplish the dissolution of marriage and resolve all issues presented .
Being able to create that safe space to deal with complex family law issues is another highlight of the Collaborative Process . One example is in the realm of children ’ s issues . At first blush , it may appear that the Collaborative Process would not be appropriate for a party dealing with substance abuse disorder when minor children are involved . I would suggest , it is just the opposite . Within the safety of
PBCBA BAR BULLETIN 5 the Collaborative Process , a parent can address the real issues surrounding his or her substance abuse . The team can pause the Collaborative Process and help that party obtain much needed rehabilitation and other services . They can respectfully acknowledge the delicate balance and care that is required when a parent-child relationship needs to be considered in light of a parent ’ s substance abuse and create a mechanism that does not serve to punish the parent but , instead , provides continuing safe access along the path to sobriety .
Contested family law litigation which leaves lifelong decisions in the hands of a Judge who has known the family for perhaps mere hours , is like rolling the dice in Vegas . If you want to improve the odds of parties adhering to a long-term resolution , a buy-in to the Collaborative Process should prove much more successful than a buy-in at the poker table .
Tami L . Augen Rhodes practices exclusively Marital and Family Law and is the principal at The Law Offices of Tami L . Augen , P . A . She is the Immediate Past President of the Craig S . Barnard American Inn of Court LIV ; the Founder and President of the Palm Beach Academy of Collaborative Professionals ; and is SuperLawyers and AV rated . You can contact her via www . tamiaugenlaw . com .
For additional ADR tips and resources , go to https :// www . palmbeachbar . org / alternativedispute-resolution-committee /