This is a brief historical overview of the Collaborative Law Process and a general description of the process as it has been approved in Florida.
In 1990, Stu Webb, the Father of Collaborative Law, wrote a letter to the Minnesota Supreme Court Justice, A.H. “Sandy” Keith outlining what he referred to as the collaborative-law model. It was structured to create a settlement climate for family law cases by removing the trial aspects from consideration. Each party would be represented by an attorney of their individual choice; there would be no threat of litigation; and the lawyers would be freed up to use their real lawyering skills, i.e. analysis, problem solving, creating alternatives for settlement and looking at the overall picture as to what is fair. He wrote, “Clients… get an orientation in which they are advised of the advantages, including cost savings,…the kind of attitude and frame of mind that is most likely to achieve fair, prompt, efficient and positive settlements that work for both parties.”
From this, the Uniform Collaborative Law Act and Rules (UCLA/R) were formed by the National Conference of Commissioners on Uniform State Laws with the most recent amendment being 2010. There are currently 23 States and the District of Columbia that have adopted the UCLA/R by legislative enactment and/or Rule. Florida first passed the Collaborative Law Process Act in 2016- §61.55-58 Fla.Stat. which was enacted in 2017 by the Florida Supreme Court adopting Rule 12.745 Fla. Fam. L. R. P., Collaborative Law Process.
The legislature included in §61.55 Fla. Stat., “It is the policy of this state to encourage the peaceful resolution of disputes and the early resolution of pending litigation though a voluntary settlement process. The collaborative law process is a unique nonadversarial process that preserves a working relationship between the parties and reduces the emotional and financial toll of litigation.”
The Rule provides for how the process is commenced and is concluded or terminated. The Statues go into more detail in relation to what goes on in the Process, including providing definitions also highlighting the confidentiality of the Process. And through the Florida Academy of Collaborative Professionals, a set of Collaborative Ethics was approved for use and application in the Collaborative Law Process in Florida which were derived from the IACP Ethics and Standards. See my blog concerning Ethics posted on the FACP website on April 18, 2023 which can be found at https://www.collaborativepracticeflorida.com/collaborative-standards-and-ethics-foundational-or-merely-aspirational/.
The Collaborative Law Process is a dispute resolution process in which the clients resolve disputes without resorting to any process in which a third party (i.e. Judge or Magistrate) makes a decision that legally binds a client. The process is voluntary, open and transparent. Disclosure of documents material to the process are freely exchanged. There is a code of conduct that the clients and team members abide by. And the process is private and confidential.
In order for the Collaborative Law Process to officially commence, the parties/clients must be represented by two (2) independent attorneys and everyone must sign a Participation Agreement setting forth how the process will be conducted. The Participation Agreement must include a disqualification clause. The clause shall provide that the attorneys (and any other collaborative professionals who make up the team) will be disqualified from participating in any legal proceeding on behalf of the client which deals with the subject matter of the Process. What this means is that the attorneys may not take part in any fashion, either as counsel of record, advisor or witness in any subsequent legal matter that is between the parties and which deals with the issues of the collaborative law process. Rule 4.5.A. FACP Ethics and Standards. The exception is to obtain a final judgment of dissolution of marriage upon successfully concluding the collaborative matter or for the entry of an Order on a partial agreement executed by the parties during the process.
Additional team members, including a facilitator/coach, normally a mental health professional trained in the process, and a financial professional are part of the full team. They are not legally required, but most often are essential to the successful resolution of issues in the process.
For more detailed information, I encourage you to log onto the Florida Academy of Collaborative Professionals (FACP) website or the International Academy of Collaborative Professionals (IACP) website. I will be providing additional FAQS on collaborative law, going into more detail on the Collaborative Law Process.
Written by Jeff Wasserman
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