PBCBA BAR BULLETINS pbcba_bulletin_april 2018 | Page 7

ADR C o r n e r
COLLABORATIVE LAW
AN ALTERNATIVE APPROACH TO AN ADVERSARIAL PROCEEDING
VICTORIA A. CALEBRESE
This article will provide a brief overview of
the Collaborative Law practice and how this
process can be used as an alternative to the
traditional litigation approach.
Collaborative Law is a voluntary settlement
process wherein:
1.
Settlement by agreement is
intentionally pursued as the positive
outcome of legal representation.
Participation Agreement setting forth the
ground rules and expectations, defining
each party’s role, explaining the expectation
of confidentially, voluntary disclosure and
“opting out” of the collaborative process.
This process can begin prior to a case filing
or after a case has been filed. resolution and want to preserve the assets
for the family thus making the process less
costly than a litigated matter.
The process consists of a series of scheduled
team meetings wherein all parties attend
2.
The parties actively participate and follow an agenda. The end goal is to
in the negotiations necessary for the reach an agreement on all elements with
resolution.
good faith participation in this process. It is a “everyone play nice in the sandbox
approach” versus the “scortched earth”
approach. Where parties have a great
imbalance of power or if there is any type
of abuse between the parties, they are
not good candidates for the collaborative
process.
3.
The cooperative practice replaces Why does the Collaborative process work?
adversarial techniques in litigation
The collaborative model, unlike a Court
proceeding, is private, and the financial
It is an open and transparent process information of the parties is not made
wherein the parties and all professionals public. Also, timing of the collaborative
work towards the common goal of resolving process is controlled by the parties and
the parties litigation in a private, expedited, not a Court docket. It is a faster process.
and positive approach towards resolution. More importantly, in a divorce setting,
Thus, the collaborative process requires the relationship between the parties is
a team approach. In a family law setting, maintained and the families are not torn
the team consists of the parties, their apart.
counsel, a neutral facilitator and a neutral
financial (such as an accountant). The One key element of the Collaborative
neutral facilitator, usually a licensed Process is the “opt out” provision. In the
mental health care professional, schedules event a party wants to withdraw from the
the team meetings, creates the agendas collaborative process and proceed in the
and summaries of the meetings, addresses traditional adversarial process in the Court,
disputed issues before they become serious then the parties’ attorneys are terminated
and assists in developing the Parenting and the parties will need to retain new
Plan in family law cases.
The neutral counsel in order to proceed in Court. The
facilitator identifies the parties concerns, dismissal of the attorneys is a red herring
lowers anxieties and focuses on the present for some lawyers. Yet, it is this provision
and future and not the past. The financial that keeps the parties vested in th e process.
neutral’s role is to gather the financial The attorneys in the Collaborative Law
information, prepare spreadsheets and process need to make a paradigm shift
cash flow analysis and educate clients from adversarial to cooperative, from past
if they need help understanding these to future, from blame to impact and win/
figures. The financial neutral facilitates lose to win/win. Although each party’s
the decision making process by creating lawyer is still an advocate for their client
various financial options to be considered in this process and there is attorney/client
by the parties.
privilege, it is a difficult line to walk. In this
process, lawyers are educators and problem
The goal of the entire team is to advance the solvers rather than litigators, pit bulls,
interests of both parties. The team focuses etc. This paradigm shift for attorneys can
on the parties’ individual and joint goals be difficult to achieve. It takes a seasoned
and interests and works cooperatively attorney to achieve success in this process.
in obtaining all financial information, The Collaborative process does work when
explores options and problem solving. This the clients want control over the outcome,
process begins when all participants sign a are willing to jointly participate in a
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Not every case is optimal for the
Collaborative process. It takes the right
parties and mindset.
Florida recently enacted the Collaborative
Law Process Act (Fla. Statute § 61.56) which
now codifies the Collaborative Practice
in the Family law statute. In addition to
family law, this model can be applied to
other litigation such as wills & trusts,
construction law, business partnership,
family/closely held business disputes. In
my personal experience, I have participated
in three (3) cases within the last year which
were all successfully resolved using the
Collaborative process. This Process can
and does work.
“The Collaborative law process is a unique non-
adversarial process that preserves a working
relationship between parties and reduces the emotional
and financial toll of litigation.” 2
1 2007 International Academy of Collaborative Professionals
2 Fla. Statute 61.55
Victoria Calebrese, a board certified marital & family
law Attorney is the founder of the law firm of Victoria
Calebrese, P.A. who focuses on the family and
preserving that family. She focuses on providing a
high level of service to her clients. She also combines
extensive traditional litigation experience with an
emphasis on settlement and mediation for effective
representation.