Non-adversarial Family Law: Collaborative Law, Cooperative Law, and Mediation
Have you noticed that the Family Law Divisions of each county in Florida are separate from the Civil Divisions? The reason is that the family law courts are considered “courts of equity.” Family courts are supposed to deal fairly and equally with all concerned whether the issue concerns a divorce, time-sharing, or child support.
In a collaborative law case the parties each retain their own independent attorney. Each individual and their attorney decide if they want to try resolving their issues using collaborative law. If so, the parties meet with their respective attorneys to discuss whether they want to enter into a collaborative law participation agreement. At the initial meeting of both parties and their lawyers, the parties and attorneys outline what they view as the major issues and discuss what decisions need to be made, whether they may need other professionals, and what documents they need to review in order to reach a resolution. Once the parties have met, each attorney and his or her client decide whether they want to enter into a formal collaborative law participation agreement.
The formal participation agreement contains guidelines, including the use of neutral experts, civility to each other, and cooperation in producing necessary documents. They agree to work together in good faith. If they need an accountant, psychologist, or other professional, they may choose one at this stage. They may also agree to minimize any discussion of the action with the children of the parties. The participation agreement also states that if either party seeks court intervention to resolve their issues, both parties must get new attorneys to represent them. One misconception about collaborative law is that once a person agrees to attempt to use the process they then are required to enter into a collaborative law agreement prior to or at the initial meeting. This is not the case. The parties can meet to discuss their concerns and issues. If either attorney or client believes that the differences are such that they need to resolve some issues prior to entering into a participation agreement, there is no requirement that they sign the collaborative law participation agreement at the first meeting.
In a cooperative law case, similar to a collaborative law case, the parties retain their own independent counsel. Once they decide to resolve their case in a cooperative manner, they enter into a participation agreement. The agreement is similar to the participation agreement used in the collaborative law case with both parties agreeing to work in good faith to resolve their issues through cooperative negotiation rather adversarial litigation. The difference is that when parties decide to resolve their differences using the cooperative process, neither party is required to obtain new lawyers if the process breaks down. It is also possible to enter into a cooperative law agreement after the initial case has been filed in the court.
Family Law Mediation
In the mediation process a certified family law mediator works with both parties to assist in providing a resolution. Mediators may be used to help resolve one or more of the issues by attorneys using both the collaborative process or the cooperative process or they may try to resolve issues without either party having an attorney. However, although the mediator may be an attorney, the mediator may not give legal advice or represent the interests of either party. The decision whether to utilize collaborative family law, cooperative law, a certified family law mediator, or to proceed directly to litigation is a decision that is made by each individual after consultation with their selected attorney, and on a case by case basis.