Mediation has been around for a while to help people privately resolve disputes. Generally, it has been associated with helping parties resolve legal issues, such as divorce, paternity, or even contracts or business disputes. But mediation can also be used to resolve every day disputes. In fact, the purpose of marital mediation is to help strengthen marriages.
Marital mediation is a concept promoted by New York psychologist Ken Neumann and Boston family attorney John Fiske. In marital mediation here in Tampa Bay, you sit down with neutral co-mediators. One is trained as an attorney, and the other who is trained as a therapist. However, they will not be providing therapy or giving legal advice. Rather, the co-mediators help you identify the issues that are causing problems in your marriage and help you reach agreements.
Divorce is tough. Your marriage is falling apart and the foundation upon which you thought you could depend is no longer there. Rather than fling yourself into the chaotic and adversarial divorce court system, you have alternatives. One structured alternative is Collaborative Divorce.
In Collaborative Divorce, you and your spouse retain separate attorneys to guide you along the way. Unlike litigation lawyers, these attorneys’ only purpose is to help you reach an agreement as amicably and efficiently as possible. In fact, the process prohibits Collaborative Attorneys from engaging in contested court proceedings. Because of this, you do not have to worry about motion practice, depositions, or dirty trial tactics. You can just focus on reaching a resolution that is best for your future.
Here in Tampa Bay, a neutral Collaborative Facilitator usually aids you. The Facilitator has a specialty in communications, family dynamics, and childhood development. When you and your spouse seem to get stuck in the arguments of the past, the Facilitator will help get things back on track and focused on the future. Further, if you have children, the Facilitator will help you craft a parenting plan tailored to your children’s specific needs.
To ensure transparency, you may retain a neutral Financial Professional. The Financial Professional helps you and/or your spouse understand the extent of your estate. He or she will then help you develop options for best dividing it. He or she can also help you develop budgets so you know that you will have a financially sustainable future after divorce.
Every Collaborative Divorce is Different
Every Collaborative Divorce is different. However, as a trainer, many of my students (who are lawyers, financial professionals, mental health professionals, mediators, and others) find it helpful to have a step-by-step guide to Collaborative Divorce. This is meant only as a sample. The more Collaborative Cases I am involved with, the more they deviate from this guide; in truth, just as there is no “typical” family, there is no “typical” Collaborative Divorce.
If you are going through divorce, you may have noticed that you are feeling and acting differently. You may have trouble sleeping, or your appetite might have changed. Perhaps the things that normally bring you joy, such as hanging out with friends, now just create anxiety or anger. Maybe you are having difficulty thinking clearly, and you are just paralyzed to make a decision.
If so, this is normal. You are going through divorce. You are going through a trauma.
As we are in the midst of another potential trauma, hurricane threats, perhaps now is a good time to explore how trauma affects us.
Collaborative Divorce, also know as Collaborative Family Law, Collaborative Practice, and the Collaborative Process, is a structured form of dispute resolution where you and your spouse/partner can reach agreements privately and amicably.
J. David Harper, who is a forensic accountant and Collaborative Financial Neutral in Tampa Bay, refers to the structure of Collaborative Divorce as the “Four D’s.” Harper writes in his article, Traits and Skills of a Highly Financial Neutral, published in Mosten & Cordover, eds., Building A Successful Collaborative Family Law Practice (ABA 2018), the following:
The question of which attorney to choose is a very personal one. You want someone who will offer a warm, welcoming environment and who understands the unique legal and societal challenges that transgender family law matters often entail. You want someone who has been on the forefront of LGBTQ family law rights and will be there for you. We would be honored to represent you.
The International Academy of Collaborative Professionals (IACP) is the premier organization urging families to resolve divorce and other family law matters in a better way. Collaborative Divorce, also known as Collaborative Practice, Collaborative Law, and the Collaborative Process, is a structured method of private dispute resolution that keeps families out of court.
The short video below, produced by the IACP, explains why families facing divorce should consider Collaborative Practice.
When you come into my office to learn about collaborative divorce, I want to make sure that you understand the process. Yes, collaborative divorce helps families day in and day out, but there are potential negatives that you need to know, as well. Further, Rule 4-1.19 of the Florida Bar Rules of Professional Conduct requires me to help ensure you have informed consent before entering the collaborative process.
Accordingly, I will sit down with you to discuss all aspects of collaborative practice. At the end, I will provide you with an Explanation of Collaborative Process Consent Form to sign. I have designed this form, but it is based on one created by Robert J. Merlin, an attorney in South Florida who was the point person for the adoption of Rule 4-1.19 by the Florida Supreme Court.
If you are considering or going through divorce, there are two terms you should become familiar with: collaborative divorce and collaborative divorce participation agreement.
Collaborative divorce is a form of private dispute resolution where you, your spouse, and your attorneys agree from the beginning that they will not fight in court. You agree that you do not want to subject yourselves, your children, your business, and your friends and family to an adversarial, hostile, and public court system. You just want to move on to your better future in the least painful way possible.
Though there are statutes and rules that interact with the collaborative divorce process, it is mainly governed by a contract, known as a collaborative divorce participation agreement. This is an agreement that you and your spouse sign. Because the collaborative divorce process is very different than the traditional divorce process, it is important that you have a complete understanding of your collaborative divorce participation agreement and walk through the agreement thoroughly with your attorney.
Below is a sample collaborative divorce participation agreement that I often use in my cases here in Tampa Bay. Keep in mind that there are a lot of variations of this agreement, and different communities use different participation agreements. In fact, I use different participation agreements depending on the circumstances of the family and what type of resolution they are trying to reach (i.e., divorce, post-divorce, prenuptial agreement, or postnuptial agreement).