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.
Collaborative divorce as a form of out-of-court dispute resolution has been around since 1990, but it did not just magically appear. Minnesota family law attorney Stu Webb decided he was fed up with the traditional adversarial court system. And he decided to do something about it.
In the video below, Henry Yampolsky of the Living Peace Institute interviews collaborative divorce founder Stu Webb:
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.
In 2012, as news of Tiger Woods’ extramarital affairs and his wife’s reaction repeated on TV broadcasts and magazines throughout the world, some professionals stood up and said it does not need to be this way. You can maintain your privacy and dignity in your family law matter. You can utilize the collaborative divorce process.
In the video below, Psychologist Ellie Izzo, author of The Bridge to I am: Rapid Advance Psychotherapy and co-author with Licensed Marriage and Family Therapist Vicki Carpel Miller of Second Hand Shock: Surviving and Overcoming Vicarious Trauma, discusses collaborative divorce in the wake of the Tiger Woods divorce:
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.
When determining which attorney to hire for your divorce, you may be tempted to believe that your best option is to hire an overly-aggressive lawyer. But is that truly going to benefit you and your family? Do you want to make your spouse “the enemy” and make your children collateral damage? Well, there is another option. Instead, you can hire a family-focused divorce lawyer.
In the video below, Minnesota collaborative attorney Ron Ousky, former president of the International Academy of Collaborative Professionals, discusses, among other things, why you should consider hiring a family-focused divorce lawyer.
On May 18, 2017, the Florida Supreme Court published an opinion approving collaborative law rules. The collaborative law rules are the last step necessary before Florida’s Collaborative Law Process Act goes into effect.
The opinion approves Rule Regulating the Florida Bar 4-1.19 and Florida Family Law Rule of Procedure 12.745.
Rule Regulating the Florida Bar 4-1.19
Florida Bar Rule 4-1.19 is a rule of professional conduct. It creates certain obligations of attorneys representing clients within the collaborative process. Among other things, the rule requires collaborative lawyers to do the following when contemplating collaborative practice with a client:
- Provide sufficient information about the benefits and risks of the collaborative process;
- Explain alternatives to the collaborative process, including litigation and mediation;
I have noticed lately that there is a trend among divorce mediators in Tampa Bay: keep spouses separate from one another. This is known as “caucus”-style mediation, where the spouses are kept in separate rooms from the very beginning of mediation, and the mediator travels back and forth between the rooms relaying information and offers.
There is a good reason why many great mediators prefer caucus-style mediation. As divorce is a highly-emotional process, spouses can set each other off when they are facing one another, and negotiations can descend into argument and cease being productive.
I can see where caucus-style mediation may be appropriate for some families, but it is not my preferred method.
Rather, when I act as the neutral mediator, I prefer to practice face-to-face mediation.