Alice L. Blackwell

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Barry Law ReviewVolume 17Issue 1 Fall 2011 Article 12011Collaborative Law: A Better Way for FamiliesAlice L. BlackwellFollow this and additional works at: https://lawpublications.barry.edu/barrylrevPart of the Family Law CommonsThis Article is brought to you for free and open access by Digital Commons @ Barry Law. It has been accepted for inclusion in Barry Law Review by anauthorized editor of Digital Commons @ Barry Law.Recommended CitationAlice L. Blackwell (2011) "Collaborative Law: A Better Way for Families," Barry Law Review: Vol. 17 : Iss. 1 , Article 1.Available at: https://lawpublications.barry.edu/barrylrev/vol17/iss1/1COLLABORATIVE LAW: A BETTER WAY FOR FAMILIESAlice L. Blackwell*In law schools across the country, we teach law students how to be lawyers.Law students are taught that the American system of justice functions best whentwo lawyers each zealously, yet ethically, represent their respective client's interestin a contested court proceeding, refereed by an impartial judge. Law students spendmany classroom hours learning rules of evidence and procedure that apply to thecases they will eventually handle. They learn that the zealous use of the rules ofevidence and procedure can procure an advantage for a client and make thatclient's case successful.There has been a steady recognition throughout the last half of the twentiethcentury, that this traditional litigation model is not a good model for casesinvolving family members. When dissolutions of marriage, paternity actions,adoptions and the like are decided, the litigants must continue with a relationshipafter the case is concluded, especially when there are children involved. Thetraditional litigation model-where the parties do not communicate except throughtheir lawyers, where the judge makes the decisions for the family, and where rulesand procedures dictate conduct-is a poor model for communication regarding thechildren after the legal action is concluded. In fact, a hotly litigated case may causedamage to the litigants' relationships which is difficult, if not impossible, to repairafter the case is concluded. Despite efforts to handle family cases in a mannerdifferent from other cases,1 the vast majority of family law cases are still handledaccording to a traditional litigation model.Family cases are some of the most difficult cases because they deal with themost basic human relationships and provoke the most emotional reaction of alllegal disputes. There is no doubt that when the court system is tasked with dividinga family-its children's time, its assets and its debts-the emotional reactions ofthe parties can be extreme. It is widely acknowledged that there is a grievingprocess associated with divorce and separation, and that persons going through adissolution or separation are impacted emotionally in a substantial way. Thesepersons need emotional support as much as they need a legal resolution to theirproblems. Courts are designed to find facts and apply law correctly to the facts-courts do not provide emotional support and comfort to the parties.Family law cases were not as prevalent in the early part of the twentiethcentury in American jurisprudence. Divorce was less common and the spouse* Circuit Court Judge, Business Court Division, Ninth Judicial Circuit, Orange County, Florida. JudgeBlackwell graduated from the University of South Carolina School of Law, has been a Circuit Court Judge since1991, including seven years in the Domestic Division, and is an adjunct professor at Barry University, Dwayne 0.Andreas School of Law, teaching Family Law.1. See, e.g., In re Report of the Comm'n on Family Courts, 588 So. 2d 586 (Fla. 1991).1: Collaborative Law: A Better Way for FamiliesPublished by Digital Commons @ Barry Law, 2011Barry Law Reviewseeking divorce had to show fault on the part of the spouse being divorced.Beginning in the middle of the twentieth century the number of divorces began torise significantly. Divorce rates peaked in 1980 and have been dropping slightly inthe following years. In 1969, California adopted no-fault divorce 2 and by the end ofthe century almost every state in the United States had adopted some form of no-fault divorce. Spouses could procure a divorce without having to assign fault oreven giving a substantial reason for the dissolution.Notwithstanding the divorce rate, the majority of men and women aged 25-44are currently married or cohabiting (i.e., in a sexual union with a partner of theopposite sex).3 Over the past twenty years, there have been increases in the numberof persons who have cohabitated (lived together with a sexual partner of theopposite sex).4 Cohabitation is increasingly becoming the first co-residential unionformed among young adults.5 As a result of the growing prevalence ofcohabitation, the number of children born to unmarried cohabiting parents has alsoincreased.6 Studies have found that persons who cohabit prior to marriage are morelikely to have their marriages dissolve than those who did not cohabit 'beforemarriage.7 These rising divorce rates, followed by the rise in cohabitation andchildren born to cohabitating couples and single-parent homes, has created hugepressures on family courts to deal with types of cases and an increase in the volumeof cases in unprecedented numbers.During the 1970s and 1980s, mediation developed as an alternative disputeresolution tool for court cases. Mediation involved an impartial, trained person whomet with the litigants and their attorneys in a confidential mediation session. At themediation session, each litigant could fully and completely discuss the facts of thecase and his or her feelings about the case. Mediation was widely regarded assuccessful because it gave parties the opportunity to be heard and was seen as anopportunity for each litigant to vent his or her feelings about the family's situation.The belief about the success of mediation was that allowing parties to express theirfeelings about their family lessened the severity of those feelings and produced anatmosphere in the mediation that promoted resolution of the disputes. Courtsembraced mediation, and it has become a standard part of a lawsuit, both in familyand non-family cases. A separate designation as a certified family court mediatorhas been developed in the State of Florida, with the mediator receiving specializedinstruction and training in working with families and their issues.As successful as mediation has been for many family law cases, it has alsofailed families in many ways. The relationship to the mediator was temporary and,typically, the mediator spent only a few hours with the parties during the course ofthe mediation. Once the mediation was concluded, the mediator had no continuing2. Cal. Family Law Act § 2310 (West 1969).3. U.S. DEPT. OF HEALTH & HUMAN SERVS., MARRIAGE AND COHABITATION IN THE UNITED STATES: ASTATISTICAL PORTRAIT BASED ON CYCLE 6 (2002) OF THE NATIONAL SURVEY OF FAMILY GROWTH 9 (Series 23No. 28 2010).4. Id. at 4.5. Id. at 5.6. Id.7. Id.Vol. 17, No. I2Barry Law Review, Vol. 17, Iss. 1 [2011], Art. 1https://lawpublications.barry.edu/barrylrev/vol17/iss1/1Collaborative Law: A Better Way for Familiesrelationship with the parties nor further involvement in the action. Mediation wasstill an adversarial process in that the parties negotiated from their own interest andthe process was one of trying to reach a resolution based upon the relative positionsof the parties. "Shadow" parties, those persons who influence the parties but arenot a part of the lawsuit, could not be assessed or neutralized.8In more recent years, collaborative law has developed as a dispute resolutionprocess. Collaborative law or the collaborative law process is a guided resolutionprocess where a team of professionals works with a couple to resolve their issues.When a couple chooses the collaborative process, they hire lawyers who have beenspecially trained in collaborative law. The lawyers select a mental healthprofessional and a financial professional, each of whom is also collaborativelytrained.9 The mental health and financial professional are neutral experts, that is,they serve each of the parties. The parties and their professionals enter into acontract which has unique features. One feature of a collaborative law case is thatthe parties agree to share information, including financial information without theneed for formal discovery processes. There is usually a confidentiality agreement.Most controversial is the agreement by the parties, the attorneys and the otherprofessionals that, if the collaborative process breaks down and the parties resort tocourt proceedings, none of the professionals (including the attorneys) will be usedfor any purpose.The collaborative case proceeds without being in the court system. No judgeguides the case and there are no rules of evidence or procedure which govern. Themeetings of the parties and their professionals are held privately, in a conferenceroom or other meeting space, rather than in a public courtroom or hearing roomwith armed deputies or bailiffs. The parties, through their collaboration agreement,agree that they will fully cooperate with each other to obtain any neededinformation.Through a series of meetings, the parties engage in problem solving. Eachparty's needs and the needs of children are considered and accommodated.Shadow parties are identified and their impact on the process is understood. Byengaging in mutual problem solving, the parties develop strategies for conflictresolution and try to reach a complete resolution of the dispute. Before eachmeeting, the professionals (lawyers, mental health and financial) hold a pre-meeting to plan for the meetings and to set an agenda. After each meeting, theprofessionals debrief together in order to mutually process the events that occurredduring the meeting.During the meetings, the focus is on determining the needs and wishes of eachparty and then developing options and strategies to meet those needs. Collaborativeprofessionals are trained to allow the parties themselves to brainstorm options,rather than having options presented by the professionals. Parties are not permitted8. Shadow parties can be parents of litigants, new spouses, close friends, or others who influence thedecisions a litigant makes regarding the current dispute.9. The author acknowledges that there are several different models for a collaborative case. For purposesof this article, the one mental health/one financial professional model will be described.Fall 20113: Collaborative Law: A Better Way for FamiliesPublished by Digital Commons @ Barry Law, 2011Barry Law Reviewin a collaborative case to negotiate in the traditional manner asking for more thanthe party wants and then negotiating down to an acceptable resolution. Rather, thediscussions are interest-based, allowing each party to say what he or she reallyneeds and then seeking to accommodate those needs, if possible.While each party has his or her own lawyer, collaboratively-trained lawyersfunction quite differently in a collaborative case than in a traditionally litigatedone. Rather than advocating solely for their own client's interest, the collaborativelawyer is fully engaged in assisting both clients to remain faithful to thecollaboration agreement, especially to the promises of full disclosure and providinginformation as needed and requested.One of the most useful features of the collaborative process is the inclusion ofthe mental health professional. He or she interviews each of the parties at the outsetof the collaborative process to identify the emotional issues each party .isexperiencing. The mental health professional reports back to the team members sothat the emotional issues of the parties can be addressed as well as the legal issues.The mental health professional assists the parties in their discussions with oneanother, identifies emotional issues that impact the collaborative process and canbe instrumental in assisting the attorneys in communication as well. The mentalhealth professional can also assist with child development milestones in thecreation of a timesharing plan.Much like the mental health professional, the financial professional gathers theinformation from the parties that he or she needs in order to assist the family inmarshalling and dividing assets and debts. The financial professional identifies thefinancial needs of each party and the needs of children or others who depend uponthe family for support. Either the mental health professional or the financialprofessional can recommend the hiring of other experts where needed in individualcases.The collaborative process is uniquely suited to resolving family cases. First, thecollaborative process teaches conflict resolution skills that the parties can applyafter the case is concluded. The traditional litigation model is that of two opposingparties, represented by attorneys who zealously represent the interest of theirrespective clients before an impartial judge or jury. In family law, however, thisapproach polarizes the parties and teaches them to oppose each other and to turn toa third party for a decision when they cannot agree. This approach, while ideal forcriminal cases, where the parties in interest will not have continuing relationship, isdestructive to the trust and cooperation necessary for the parties to co-parent orcooperate with each other once their dispute is resolved. The collaborative processteaches people to identify issues and work toward a resolution that is mutuallyacceptable to each person and that respects the needs of all people who areimpacted by the decision.Secondly, the emotional needs of the parties can be met through use of thecollaborative process. Each family law case is unique because each family isunique. Many cases share common issues of law and fact. Each case that comesbefore the family court also shares another common characteristic-the litigants,their children, and their extended families are going through a major emotionalVol. 17, No. I4Barry Law Review, Vol. 17, Iss. 1 [2011], Art. 1https://lawpublications.barry.edu/barrylrev/vol17/iss1/1Collaborative Law: A Better Way for Familiesupheaval as a result of the dissolution, paternity action or other family court case.Unlike traditional litigation, the collaborative process has built in the assistance ofa mental health professional who not only can deal with emotional issues thatinevitably arise in family cases, but also can anticipate and lessen the emotionalimpact of the case on the parties and their children. This feature of collaborativepractice puts the emotional issues on equal footing with the legal issues. This is ofgreat value since the emotional issues in family law cases are often the mostdifficult and persistent issues to resolve and the issues with which the court systemis least equipped to handle.Non-traditional families can be accommodated through collaborative practice,as well. Cohabiting couples, gay and lesbian couples, and other non-traditionalfamilies can access collaborative law without having to file an action in court.Many states, pursuant to the federal Defense of Marriage Act, refuse access to thecourts for divorce, adoption, and other family law matters where couples fall intothese non-traditional categories.1° Because collaborative law techniques are notnecessarily court-annexed, these parties can turn to collaborative techniques inorder to resolve disputes which would not be allowed in most state courts.Finally, the collaborative process places the control of parties' lives and thelives of their children where the control should be: in their own hands. Because thecollaborative law process has the parties define problems and solve those problemsthemselves, the solutions are not imposed by a judge or other independent arbiter,but rather the parties themselves help to formulate the solutions. Not only does thisensure that the result is the best that can be reached for that family, but it shouldhelp with compliance by the parties with the final parenting plan or other finalagreements. In a collaborative case, as in all cases, the final agreement of theparties must be submitted to the court for approval and the entry of a finaljudgment thereon. Where the court hears the case and decides the outcome, it isoften true that the post-judgment proceedings can be as difficult, timely, andexpensive as the pre-judgment ones. Issues of enforcement, modification, andcontempt can be raised, and often are raised, in the months and years following theentry of a final judgment of dissolution or paternity by the court. In collaborativecases, however, it is much less likely that the parties will have to seek enforcementsince they have participated in the final decisions and agreed to the outcomes.Of all restorative justice and alternative dispute resolution techniques, thecollaborative law process offers the most promise for producing a healthy outcomein contested family law cases. By dealing with family law cases as legal andemotional events, by teaching healthy conflict resolution skills, and by removingcases from a traditional litigation model, collaborative practice offers the best hopefor preserving family relationships and lessening the stress and turmoil of familydisputes.10. Defense of Marriage Act, 110 Stat. 2419 (1996); see also I U.S.C. § 7 (1996); 28 U.S.C. § 1738C(1996).Fall 20115: Collaborative Law: A Better Way for FamiliesPublished by Digital Commons @ Barry Law, 20116Barry Law Review, Vol. 17, Iss. 1 [2011], Art. 1https://lawpublications.barry.edu/barrylrev/vol17/iss1/1

Collaborative Law: A Better Way for Families

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Collaborative Law: A Better Way for Families

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