By Carolann Mazza, P.A.
An alternative dispute resolution process for people who are divorcing, who are not married though have children in common, for same-sex couples, and other people who have family related conflicts.
What Is Collaborative Law?
Collaborative law, also known as collaborative divorce and collaborative practice, is an alternative dispute resolution process for people who are divorcing, who are not married though have children in common, for same-sex couples, and other people who have family related conflicts. It is also for people who wish to enter into pre-nuptial agreements, post-nuptial agreements and/or cohabitation agreements.
Although most commonly known as an alternative dispute resolution method, collaborative law is really a consensual dispute resolution process. This is because a couple must agree (“consent”) to a number of things before entering into a collaborative process to resolve their dispute. First and foremost, the couple must agree and be willing to enter into open and honest discussion about how their conflict will be resolved. This means that they are acknowledging the end of their relationship as it has been and recognizing that the relationship will be different in the future. Their willingness to do this helps them to define how their new relationship will look and how their family will function going forward. A couple considering the collaborative process must be willing and able to move beyond their feelings of hurt, anger, betrayal, fear, loss, etc. that exist in almost every relationship that breaks down for their own benefit and for the benefit of their family, especially their children.
Second, the couple must be willing to sign a Participation Agreement that says they will engage in open and honest discussions, voluntarily exchange relevant information and documents, and stay out of court during the process. This is a particularly important distinction between the collaborative process and regular negotiations. In a collaborative case, the couple along with their collaborative attorneys and other professionals, work together as a team to identify common interests and goals the couple has for resolving their conflicts and restructuring their family. In traditional divorce litigation, people establish positions from the very first moment of the case, through the divorce petition, where allegations are often damaging and hurtful. In traditional litigation, the negotiations are done largely through the lawyers, via letters that go back and forth, telephone calls and sometimes by filing motions—all very expensive. In the collaborative process, the couple is in charge of the process, including scheduling meetings, deciding what information is to be exchanged and is present during the conversations.
What is the team?
Collaborative law is a team-oriented approach to helping people solve conflicts. The team is made up of the couple and their collaborative attorneys. That’s right, each of the people have their own attorney, advising them on the law, advocating for them and assisting the couple to reach their common goals. In this way, collaborative law differs from mediation because while mediators are tasked with helping the couple identify issues and facilitating settlement, they are not permitted to provide legal advice to either or both of the participants.
Collaborative attorneys differ from non-collaboratively trained, traditional family attorneys in that because the process is not adversarial, the collaborative attorneys work in unison with the couple and with each other to help the couple create unique solutions to their unique family needs and interests. Collaborative attorneys are specially trained in methods that promote cooperation and working towards common interests.
The team most often will also consist of a communication facilitator who is usually a mental health professional and a neutral financial professional. In Florida, the most common type of collaborative process that is utilized is a multi-disciplinary model. This means that the team is made up of professionals from multiple disciplines to help the couple focus on the particular issue with the help of an expert in that particular field. For example, the collaborative facilitator as a member of the mental health profession is more experienced in the area of child development, communication, and interpersonal relationships than most attorneys. Utilizing a member of this profession to address parenting issues and communication challenges is more efficient and cost-effective than utilizing an attorney to work out these issues.
Similarly, utilizing a neutral financial professional to address dividing the family nest egg in the most practical matter helps the couple retain more of their hard-earned nest egg and is more cost-effective and efficient than utilizing an attorney who doesn’t have the level of expertise in the field.
Carolann Mazza is a collaborative family attorney and mediator who focuses on the areas of the law that affect the family, including, divorce, paternity, parenting, child support, domestic partnerships, and other family-related issues.
Ms. Mazza graduated from University of Florida in 1986 and earned her law degree from South Texas College of Law in 1996. She has been practicing family law since 2001. She is licensed to practice law in Florida, and in Texas. She is an active member of the Collaborative Family Law Institute (CFLI) in Miami, and a member of the Board of Directors of the Collaborative Family Law Professionals of South Florida, serving as chair person of the Public Awareness Committee. She works with families who are married or who are not married, yet have children in common, and works with clients to create relationship agreements such as pre and post marital agreements and cohabitation/property agreements.