Collaborative Law: A Different Perspective

On July 1, 2017 the Collaborative Law Act goes into effect in Florida.  Collaborative law is touted all over the internet as the best thing since sliced bread.  I think the jury is still out on collaborative law and from my perspective mediation is still the best option for a peaceful, non-adversarial, cost-effective resolution of disputes.

Both mediation and the collaborative process provide for confidentiality and there is a mediation privilege as well as a collaborative privilege.  The goal of both mediation and the collaborative process is the settlement of issues through a negotiated settlement in an effort to preserve the relationship between the clients.  In one article, the writer opined that collaborative was superior to mediation because the parties were in the same room, rather than in a caucus situation (in a caucus the parties are in different rooms and the mediator goes between the rooms).  Mediation does not preclude the parties from being in the same room and if the parties are willing, an open discussion/negotiation with all parties and their attorneys present is preferred since mediation has at its heart self-actualization.

The cost of mediation is similar if not less than collaboration: Collaboration involves multiple meetings, as well as discussions with only the professionals (more money) and discussions regarding the upcoming agenda and also involves time spent preparing for the multiple meetings.  Typically there is only one mediation (although there could be several continuations of said mediation) and the mediator essentially sets the agenda for the structure of the negotiation (generally, issues easily settled go first to keep the mediation moving and build confidence in the process).

Professionals are also welcomed into the mediation process, and oftentimes the parties will agree to use one professional during their divorce case and in mediation to save money.  However, there are times when a client is more comfortable with their own financial advocate and one financial professional may not always be productive; the key is to find two professionals who are fair and work well together.  Often times the professionals will work together to come to  fair resolutions which the clients accept because they trust their professional has their back.

As in collaboration, sharing of documents is encouraged prior to mediation or in mediation.  Again, if parties desire to save money they will cooperate whether or not they are in a formal collaborative setting.

Another advantage touted for the collaborative process is that there is no time pressure in collaboration.  This can be an advantage or a disadvantage as some clients may need some type of pressure to settle and the longer the case goes on, in collaborative or otherwise, the more money is spent on fees.  Finally, if both parties agree and the court is informed the parties are working toward settlement, often times a stay can be procured to relieve the time pressure of a looming hearing or trial. The courts also prefer settlement.

The major pitfall with collaborative, in my opinion, is that if the process fails or one party decides they are no longer in a collaborative mood then both attorneys must withdraw.  The client is now without their trusted advisor, a new attorney must be retained (read money), the new attorney must spend time learning the case and all of the nuances of the case relayed to the attorney by the client during the course of the former representation (read more money), the work of the professional may or may not be used by agreement and a new professional will most likely be retained and will do their own independent review (read even more money), and all of the money previously spent was essentially wasted.  On the other hand, in a mediation, if the process fails the attorney continues to represent the client and litigation proceeds with the same professionals in place that have been advocating for the client all along.

 

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