There has been a growing recognition over the past few decades that courtroom divorce, an adversarial process that pits husband against wife, is a dreadful and harmful method to resolve family disputes. As a result, the Florida Supreme Court, like many other judicial bodies, declared that family matters needed “a system that provided nonadversarial alternatives and flexibility of alternatives; a system that preserved rather than destroyed family relationships;…and a system that facilitated the process chosen by the parties.” In re Report of the Family Law Steering Committee, 794 So. 2d 518, 523 (Fla. 2001).
Two alternatives that have developed to fill this space are mediation and collaborative divorce. As collaborative divorce is a relatively new option, and there exists much confusion – even among experienced family law practitioners – about the differences between these two methods of dispute resolution, this article looks to compare and contrast mediation and collaborative divorce.
Event versus Process
Mediation is generally a one-time meeting where the parties come together, along with a mediator, to attempt to settle disputes. In Florida, the parties’ attorneys are also in the room, though other jurisdictions exclude attorneys. The mediator is a neutral actor who does not have the power to force the parties into any type of settlement, but can only encourage them to reach an agreement. A mediation conference will generally last from 3 to 8 hours or more. If the parties cannot reach an agreement in that meeting, then they tend to go to court, usually multiple times.
If you have children and are going through a divorce, your biggest concern is likely how your kids will be affected. When is the best time to tell your children, and how much should you share with them?
Your Children Will Know
Your children will know that something is going on, and leaving them in the dark may cause more apprehension and stress in them than just being upfront. Establish a united front early in the process, and tell your children together that you are separating. Assure them that while things will be different, everything will be okay. Alleviate their fears that your divorce is in any way their faults. Remind them often during the process that everything will fine and it is not their faults.
Running a small business is tough enough. Running a small business while your marriage is falling apart can be crushing. But you don’t need to go through a traditional court battle if divorce is on the horizon. Your business does not need to be a casualty. There is an alternative. There is collaborative divorce.
Small Business & Privacy
Collaborative divorce is a form of out-of-court dispute resolution that values privacy. This means that your client lists, inventory details, and other trade secrets remain safely away from public court records. In fact, here in Florida, the Collaborative Law Process Act and accompanying rules safeguard most communications had within a collaborative divorce. Courts now have authority to sanction a party who reveals a collaborative law communication.
Collaborative divorce is not for everyone. Sure, most families going through divorce would benefit from the private, secure, and non-adversarial nature of the collaborative process. However, it may not be right for you if certain things are important to you.
Collaborative divorce is not right for you if…
You are seeking revenge
If you are seeking revenge, collaborative divorce is not right for you. The collaborative process will not satisfy your need to see your spouse suffer. This is because, at the beginning of the case, everyone signs a collaborative participation agreement in which the spouses agree to engage in good faith discussions to reach a resolution. Each spouse has his or her own attorney, and the attorneys are there solely to help the clients reach an agreement. The attorneys cannot be used for opposition research, lengthy motion practice, or accusatory litigation.
However, the attorneys are also there to safeguard the process. If an attorney believes that his or her client is no longer acting in good faith, or is only attempting to damage the other spouse, the attorney may have the right to terminate the process. This shuts down behavior meant to harass the other spouse. If the attorney believes his or her client can put the need for revenge aside, the collaborative process may continue. If not, the collaborative attorney has a duty to ensure that the process is not being used as a tool for vengeance.
Further, the collaborative process generally involves a neutral facilitator, with a background in communication, childhood development, and family and power dynamics. The facilitator helps keep conversations productive and forward-focused rather than centered on past grievances. The facilitator is also there to address power imbalances and shortcut vengeful actions and communications.
Do you ever wonder how your divorce is affecting your children? Do you sometimes think about how conflict may be affecting your own mental health, and your ability to effectively parent, or co-parent?
Gary Direnfeld is an internationally known social worker, speaker, and parenting expert based out of Ontario. He has been an expert witness in many high conflict divorce trials, and yet he is a strong believer that the courtroom is a terrible forum for resolving divorce and parenting disputes. In the following radio interview, Gary discusses why he believes parenting and divorce-related issues should be resolved outside of court:
You can find a partial transcript, slightly edited for clarity, below:
Roughly 80% of folks going through a separation or divorce are going to settle things between themselves. They may have some 3rd party assistance. Twenty percent are going to turn to the courts. Less than 5%, even if turning to the courts, are going to go to trial. Most matter settle ahead of a trial. And then there is that small percentage, that 1, 2, or 3% that really tie up the courts’ time. And I, for whatever reason, find myself heavily involved with those folks.
High conflict parents turn to the court searching for release only to find that in many, many cases, litigation only exacerbates the problems. It doesn’t resolve them. And the reason for that is, in turning to the courts, it is often a race to the bottom. I will prove my case by making you look worse than me, and no one wants to be on the receiving end of that. So the other parent reciprocates in kind. And then the “he said she said” escalates to such a pitch that it is hard to know one from the other.
Good, you have decided that if you are going to divorce, you are going to do it collaboratively. This means that you and your spouse will each have your own attorneys, but the attorneys are not there to fight. You hire the attorneys to help reach an out-of-court agreement so you can move on with your lives.
But you may also know that either spouse at any time can decide they no longer want to participate in the collaborative divorce, causing it to terminate. All professionals are automatically fired. The spouses then proceed as “opposing parties” in the traditional divorce court route.
The possibility of losing your attorney is a scary notion. So, you may be wondering to yourself, how often do collaborative divorces terminate?
Did you know that there was a major change to Chapter 61 of the Florida Statutes regarding Collaborative Family Law? Are you confident that you can competently abide by Florida’s new Collaborative Law Rule of Professional Conduct and Rule of Procedure? Or do you just want to learn how to help people divorce in a less stressful, more respectful, and child-centered manner?
Attorneys, mental health professionals, financial professionals, mediators, and others are welcomed to Pensacola for an Introductory and Advanced training on Interdisciplinary Collaborative Family Law!
- Introductory Interdisciplinary Collaborative Training – November 2-3, 2017
- Enrolling the Collaborative Case Advanced Training – November 4, 2017
Where: Pensacola, Florida
- $500 for 2-Day Introductory Training
- $200 for Advanced Training (Enrolling the Collaborative Case)
- Discounted rate of $650 for all 3 days
Trainers: Tampa Bay Collaborative Trainers
After you decide to divorce, the question of how you divorce can be one of the most consequential decisions you make. You have choices. Many people hire a trial lawyer and go the traditional litigation route to fight it out in court. Usually they do this because they don’t know there are options.
In most cases, the single most humane and effective option out there is collaborative divorce. In collaborative divorce, you receive the support of your own attorney, but the attorneys are not there to fight. Rather, they are there to work together and help you figure out the best way for you and your spouse to move on with your lives as quickly, peacefully, and efficiently as possible. Other professionals are utilized to ensure everyone focuses on the future rather than the arguments that led to the divorce, as well as to aid in financial transparency.
In the video below, produced by the Tampa Bay Academy of Collaborative Professionals, a former husband, Nick, discusses his collaborative divorce:
If you have done internet searches for collaborative divorce in Tampa Bay or Greater Sarasota, you have likely come across the website for Next Generation Divorce (you can find the link here). Next Generation Divorce has many members who are family law attorneys, but it is not a law firm. It has members who are psychologists, licensed mental health counselors, marriage and family therapists, and social workers, but it is not a therapy-related organization. And it has members who are financial planners and C.P.A.’s, but it is not a financial planning or accounting firm.
Member of Next Generation Divorce
So what is Next Generation Divorce?