COLLABORATIVE FAMILY LAW INSTITUTE SponSored Section...
Transcript of COLLABORATIVE FAMILY LAW INSTITUTE SponSored Section...
COLLABORATIVE FAMILY LAW INSTITUTE SponSored Section tUeSday, FeBrUary 16, 2010
page 3 The Collaborative Family Law Institute page 6 Q&A page 7 Bios
Presented by
The Collaborative Family Law Institute
The Collaborative Law Process
A New Way of Doing Divorce
page 2 The Collaborative Family Law Process
COLLABORATIVE FAMILY LAW INSTITUTE SponSored Section tUeSday, FeBrUary 16, 2010
The Collaborative Law Process:a new Way of doing divorce
Collaborative law combines attorneys, accountants, financial planners, mental health professionals and mediators, who work jointly with clients in a spirit of mutual respect and cooperation. It is designed to help divorcing parties resolve their differences in a non-adversarial setting, allowing them to focus on the best interests of their family.
the following is an edited transcript of “the collaborative Law process: a new Way of doing divorce,” a continuing legal education seminar presented by the collaborative Family Law institute on January 20, 2010 at the intercontinental Miami.
the speakers were Brenda B. Shapiro, esq., managing partner, the Law offices of Brenda B. Shapiro, LLc; Lana M. Stern, ph.d, a licensed psychologist and licensed marriage and family therapist; and philip J. Shechter, cpa, partner, Berenfeld Spritzer Shechter & Sheer LLp. robert J. Merlin, esq., president of the collaborative Family Law institute, moderated the seminar.
the collaborative Family Law institute, the Law offices of Brenda B. Shapiro, Lana M. Stern, and philip J. Schechter produced this supplement in cooperation with the marketing department of the Daily Business Review. this supplement was produced independent of the editorial staff of the Daily Business Review.
A brief history of collaborative law
in 1989, Stuart G. Webb, a Minnesota attorney, was looking for a better way to resolve family law disputes, and he created
a model to take these matters out of the courts. that was the genesis of the collaborative law movement, which now exists throughout the United States and in 20 foreign countries.
“in essence, collaborative law is a process whereby both
parties commit themselves to resolving their differences
justly and equitably without resort, or threat of resort, to
the courts,” said robert J. Merlin, president of the Miami-
based collaborative Family Law institute. in fact, the
parties and attorneys agree that the attorneys will only
represent the parties in the collaborative process and will
not represent them in litigation.
A long-term view“Family attorneys have a profound effect on their clients’
lives, but traditional family law ignores the long-term
effect on the divorcing parties and their children,” said
Merlin. “the focus in litigation is on winning but, in the
collaborative process, there should be no winner or loser
in a divorce. instead, the parties work together to find a
solution that is mutually acceptable to both of them. the
collaborative process promotes the preservation of family
relationships rather than their destruction – a point that
can have a profound effect on the children.”
in the collaborative process, the family is looked at
as a whole and the goal is to find solutions that are in
the best interest of everyone involved. the professionals
want to empower the parties to resolve the situation
themselves rather than have a judge impose a resolution
on them. this makes for a healthier resolution, happier
clients, and a greater likelihood that they will abide by
the resolution.
The status of collaborative law in Floridain Florida and throughout the country, the practice of
the role of the collaborative Lawyer
i stand before you as a 71-year-old grandmother of ten who on January 2 went to her first Lady Gaga
concert. Inside me is an 18-year-old who loves rock and roll. I mention that point because each of us inside is different from whom we appear to be. So began the presentation of the role of the collaborative lawyer by family law attorney Brenda B. Shapiro.
“We see adult clients who often behave like 14-year-old adolescents. they are bewildered and feel betrayed. they don’t have a clue about what lies in front of them. they are confused because they’ve heard from friends about how awful divorce is. they’ve gotten advice about what they should do. and then they come to see us to solve their problems.”
Under the law, attorneys have an affirmative duty to tell people all five of their options relating to divorce, including litigation, mediation, arbitration, collaboration or reconciliation. in the initial consultation with the client, it’s important to do an assessment to determine whether the facts they provide indicate this is a case for collaboration or one of the alternatives.
collaborative lawyers are still counselors and advocates for their clients. But the counseling is done outside the family court system, which, according to Shapiro, provides an adversarial structure that taps into the anger of that 14-year-old adolescent. By removing the courts from the equation, more possibilities exist.
“as a litigator whose bias is toward collaborative law,” said Shapiro, “i tell my clients, ‘i hate to go to court, but when i’m there i love every minute.’ But in a collaborative law case, i have to do a paradigm shift. When i was
in law school, i learned that my job was to control the client and that the judge controls the courtroom. in a collaborative case, it’s the client who controls the process. and it’s not easy to give up control to that bewildered, betrayed and confused person sitting in front of you. it was the most difficult shift i’ve had to make as a practicing lawyer.”
it’s clear that while the collaborative practice is new, the concept is not. abraham Lincoln, himself a talented attorney, said, “talk to your neighbors, don’t litigate.” He said that settling cases will save time and money for
attorneys and “there will still be business enough.” today, attorneys practicing family law don’t lack for clients and increasingly they are selecting the collaborative law process.
that’s because the collaborative process usually works very well for everyone involved. Shapiro gives an example of a divorce case involving a $14 million marital estate, which was resolved entirely in three months. in litigating such cases, discovery alone can take three months, and evaluating that information even more time. Because all the things a responsible litigator does take time and
money, the collaborative process typically leads to faster results at a lower cost to both parties.
The ground rulesthe ground rules for the process are set forth in the collaborative participation agreement, in which the parties designate collaborative lawyers and agree not to seek tribunal (usually judicial) resolution of a dispute during the collaborative law process. in this way, the parties make an economic and emotional commitment toward settlement.
that agreement includes a protocol that says the two parties should not talk to one another about settlement or divorce outside the collaborative process, in order to avoid a power struggle.
the collaborative participation agreement includes a disqualification requirement, which means the parties
the development of collaborative Law
“Collaborative law is a viable alternative to litigation. Through collaborative law, we preserve relationships rather than destroy them.”
—robert L. Merlin
continued on next page continued on next page
collaborative law allows the parties themselves to resolve
their cases without going to court or having a third
party make the decision for them. the process is entirely
confidential. For individuals in the public eye, this is a
highly attractive aspect and
perhaps the only intelligent
way to go through a
divorce.
The Collaborative Family Law Institute
in South Florida, the
collaborative Family Law
institute was formed ten
years ago by attorneys who
were specially trained and
dedicated to promoting
the collaborative process.
the goal was to handle
family disputes in a way
that is healthier and less
stressful for all of the
parties. Members of the
institute share a common
philosophy: Litigation
is not the way to resolve
family disputes that result in divorce. robert Merlin was
a litigator who saw the benefits of collaboration.
“now, i talk with my clients about the alternatives and
sell the collaborative process because it makes sense,”
said Merlin. “if i can do it, anyone can – even if you don’t
think you have a collaborative bone in your body.”
With the institute’s model, a mental health
COLLABORATIVE FAMILY LAW INSTITUTE SponSored Section tUeSday, FeBrUary 16, 2010
The Collaborative Family Law Process page 3
must bear the costs of engaging new counsel. the collaborative lawyers are ethically required to end their representation if the collaborative process terminates. even in a post-dissolution action, the same attorneys cannot represent their clients.
When the parties have paid their retainers and spent four weeks in the collaborative process, for example, they are motivated to continue with it. then, if they decide to litigate, they cannot use anything that was discussed in the collaborative case. it is highly motivating for the parties to stay at the settlement table.
By engaging two attorneys in the collaborative law process, the parties send a powerful signal to each other that they intend to work together to resolve their differences in an amicable manner.
Beginning the processafter the participation agreement is signed, the two parties and their attorneys hold an initial “four-way” meeting, which typically lasts for two hours. the first session is designed to help the clients articulate their goals and objectives, and set the agenda for the next meeting.
the role of the lawyer in this session is to ask questions: What do you want to work on first? What issue is most pressing? is it the financial aspects or the kids? do you want to wait on that issue or take care of it now? the clients discuss these issues with their attorneys. no one leaves the first four-way meeting without an assignment – something that needs to be done before the next meeting. and the clients have to accept responsibility here. Unlike the discovery process
collaborative law is continuously growing and evolving.
in 2007 Judge Joseph
p. Farina, then chief
judge of the eleventh
Judicial circuit court,
signed an administrative
order recognizing the
collaborative process and
establishing the procedures
to handle these cases. in
2008, the Family Law
Section of the Florida
Bar approved the concept
of a collaborative law
statute. in July 2009,
the national conference
of commissioners on
Uniform State Laws
(nccUSL) passed a
Uniform collaborative
Law act that is now being
considered by all of the
states. collaborative law is
now being taught in the law
schools in Florida and a collaborative law statute is likely
to be passed in Florida in the near future.
collaborative law is a viable alternative to litigation.
While it is used in Miami-dade primarily in family cases,
it is also used in other parts of the country to resolve
probate and commercial disputes. in all of these matters,
About the Collaborative Family Law Institute
the collaborative Family Law institute is an
association of attorneys, mental health and
financial professionals dedicated to helping
resolve family disputes utilizing a dignified and
non-adversarial process. the process provides the
foundation for allowing parties to proceed through
the difficult process of divorce or other conflicting
family law matters without creating a hostile
environment, settling all issues. the principle that
the process of dissolving marriages and resolving
family law matters should be accomplished
through a non-adversarial, dignified process is
paramount to the institution’s purpose. For more
information: www.collaborativefamlaw.com.
“I believe that the shift to collaborative law is very empowering to both parties, and it reduces the stress for everyone, including the attorneys.”
—Brenda B. Shapiro
in a litigation case, the parties in the collaborative process gather information. they are responsible for bringing it to the next conference. the lawyers’ role is to keep checking on their clients, so everyone is prepared at the next four-way conference.
in a collaborative case, the attorneys’ advocacy role doesn’t change, but in that process clients slowly learn how to be their own best advocate and find their own voices.
Other considerationsthere are other important points for lawyers to consider. this is a client-centered process, and clients don’t always do the things that their lawyers think they should. Suggestions, options and ideas can be offered, but ultimately the client decides what they are willing to do and how they want to resolve the issues. When a client disagrees with their attorney’s recommendation, a summary letter can be written that states what the client has decided and lists the client’s reasons for it.
contrary to the litigation process, in a collaborative case, attorneys have an obligation to forward emails they receive from their client to the other party’s attorney, the fourth member of the team, as soon as they are received, as part of the contractual relationship.
another issue is confidentiality. the entire discussion at a four-way conference is confidential. What a client tells an attorney before the meeting is also confidential, unless it is relevant to the process.
if a client says, “i just got a new job that will pay me more money,” the attorney has an obligation to share that information at the next four-way conference. transpar-ency by all parties facilitates the process and also helps them build trust in the process. the most challenging aspect in a collaborative case can be helping clients learn
The Role of the Collaborative Lawyercontinued from previous page
professional is involved from the inception of the process.
each party has the benefit of an independent, neutral
mental health professional who plays a clearly defined
role in helping the parties to transition to the next phase
of their lives. the spouses learn new communication
skills, and how to resolve disputes and trust each other
going forward – an important point to consider in
avoiding post-judgment litigation.
When appropriate, a neutral financial professional
is also part of the collaborative process, helping the
parties identify and assess the financial issues, and make
suggestions for an equitable settlement. in some cases, a
mediator or a child specialist may also take part in the
collaborative process.
to trust the other lawyer. But it is essential to the process and trust can indeed be built at the roundtable.
the attorneys do make it clear that children should never be involved in the dissolution of the marriage. Both parents need to reassure their children that they are loved and will be secure. in many cases, the mental health professional, perhaps supported by a child specialist, can help the parents with this process.
Exploring options
throughout the collaborative process, the attorney has an obligation to present ideas and suggestions, helping the
client to explore and evaluate the options. Some clients come to the process with expectations of
what the results could be if achieved through litigation. it’s important to explain to them that studies consistently show that the results of the collaborative law process are usually very similar to what would be achieved in court.
“i believe that the shift to collaborative law is very empowering to both parties,” concluded Shapiro. “it reduces the stress for everyone, including the attorneys. But collaborative law is not simple – it requires training, flexibility and a different mindset from the legal professional.”
The Development of Collaborative Lawcontinued from previous page
page 4 The Collaborative Family Law Process
COLLABORATIVE FAMILY LAW INSTITUTE SponSored Section tUeSday, FeBrUary 16, 2010
to clients, and it was decided to make the mental health
professional a part of the collaborative team from the
beginning.
the mental health professional meets individually
with each party before the first team meeting. this
enables them to establish rapport, “hear each person’s
story,” assess their readiness for the divorce process and
determine their individual strengths and weaknesses.
they discuss their concerns, goals and interests,
including where they think the conflicts may lie and
where things might
break down. the
mental health
professional then
shares this information
with the attorneys
to help facilitate the
process.
Modeling collaborationeach team meeting
lasts for two hours and
has a pre-set agenda.
By setting these
meeting parameters,
the clients know what
will be addressed
and perceive a safer,
more respectful
environment. there
is a code of conduct
presented at the first
team meeting that
includes the following:
• participants will
focus on the future
and avoid unnecessary discussions of the past.
• they will focus on resolving conflicts rather than
assessing blame.
• they will focus on their shared goals, such as best
interests for the children, healthy co-parenting and
improved communications.
• they agree that arguing is pointless and will be
respectful to all participants.
Stern often changes the seating arrangements at
the first team meeting, to achieve a more collaborative
environment. instead of one attorney and client on one
side, facing the other attorney and client, she puts the
couple next to each other and the attorneys next to each
other with herself at the head of the table to model the
spirit of collaboration.
“you’d be surprised at the message it sends, after all,
the couple still has to co- parent children at the end
of the divorce. it goes a long way toward diffusing the
potential adversarial feeling,” she said.
after a team meeting, the professionals hold a
debriefing session to analyze the meeting and to discuss
the best strategies and direction for the next meeting.
Keeping the process goingone of the key roles of the mental health professional is
to monitor the emotional climate of the team meetings
and to keep the process going. if it becomes apparent that
a participant is unable to continue because an issue is
too emotional or painful, the mental health professional
can call a “time-out”
and allow the parties
to regroup, confer
with their attorney
or just regain their
composure. this
imparts a sense of
safety and protection
during the difficult
negotiation process. if
there is an imbalance
of power between the
parties and one party
is not participating
during the meeting,
the mental health
professional can
encourage that person
to communicate
directly or through
their attorney. When
disagreements occur,
the mental health
professional can
intervene and prevent
them from escalating
into disruptive events.
in some cases, they
might offer advice regarding the co-parenting plan, or
call in a child specialist as a neutral person to focus on
the interests of the children. in other cases, a referral
for therapy may be recommended for one or both of the
parties.
throughout the process, the mental health
professional helps the parties prioritize their concerns
and learn conflict resolution skills, some as simple as
talking rather than yelling or learning to use “i” messages
rather than pointing fingers with “you” messages.
the professionals who participate in the collaborative
process are “role models” for good communication
between the parties. it is not unusual for the professionals
and/or the parties to apologize for things they have said
or for interrupting the other person. collaborative law
truly encourages a different spirit and reduces the stress
level of the situation for everyone involved.
Preserving relationshipsFor the sake of the children, the family and friends, it
is the hope of the collaborative process to help preserve
relationships after the divorce. collaborative divorce
diffuses if not dissolves the adversarial relationship
and gives each party the opportunity to move forward,
recover from the divorce, reorganize the family and help
the parties become whole again in their new life.
the role of the Mental Health professional (MHp)
divorce is a relationship problem with emotional, financial and legal implications,” asserts Lana M. Stern,
ph.d. “The inclusion of the Mental Health Professional in the Collaborative Divorce Process is still fairly new but I believe it is the perfect utilization of these professionals who have been working with families, couples and individuals for years. Mental health professionals are painfully aware of the long-term consequences of a hostile, contested, litigated divorce, and the collaborative divorce process is clearly the better way.”
it is a natural union for legal, mental health, and financial
professionals to work together in these matters. the goal
of the entire team is to facilitate a healthy, respectful
divorce process so both parties achieve the best outcome
with dignity and respect and preserve the post-divorce
relationships.
at the collaborative Family Law institute, the mental
health professionals include: psychologists, marriage
and family therapists, mental health counselors and
social workers who have been specifically trained in
the collaborative process, which is quite different from
traditional therapy.
Different from Therapythese are some of the key differences between traditional
therapy and the role of the neutral collaborative mental
health professional:
• a therapist focuses on the internal, interactive
dynamics of the couple. the mental health
professional in the collaborative process is a trouble-
shooter, focusing on the best way to help the couple
get through emotional issues that may impede the
forward progress of the divorce.
• a therapist helps the couple examine and resolve
issues from the past. the mental health professional
focuses on the future and on the post divorce
relationship
• therapy is a confidential process. collaborative
divorce is a transparent process and information may
be shared with the team.
• a therapist is an advocate for the patient. in the
collaborative process the mental health professional is
neutral.
• a therapist usually does not consult with an attorney.
in a collaborative case, the mental health professional
works closely with the attorneys and the financial
neutral.
Part of the teaminitially, the mental health professionals were called into
the collaborative process only if there was a problem. the
attorneys quickly found that it sent the wrong message
“
“Mental health professionals are painfully aware of the long-term consequences of a hotly contested litigated divorce, and collaboration is clearly the better way.”
—Lana M. Stern
COLLABORATIVE FAMILY LAW INSTITUTE SponSored Section tUeSday, FeBrUary 16, 2010
The Collaborative Family Law Process page 5
the role of the neutral Financial professional
divorce is a $2 billion industry in the United States. Statistics indicate that about 4 percent occur for economic
reasons and over 80 percent are due to irreconcilable differences. Between two-thirds and three-fourths of the cases are initiated by women.
about 95 percent of men and women are married by age
55, and of that total, about 60 percent will get divorced.
in many cases, a first divorce occurs around age 30 and
a second around age 40. approximately 80 percent of
divorced men and 75 percent of women remarry, usually
in the first three years after divorce.
phil Schechter’s accounting firm handles about
200 to 250 divorce cases a year. about 10 of them are
collaborative, another 40 to 50 are neutral, and the rest
involve litigation.
“things have changed over the years,” he noted.
“When we started, every case was litigated. then we
saw a movement to using neutral parties. to me, the
collaborative process is an outgrowth of mediation and
arbitration.”
Financial professionals perform many of the same
tasks regardless of the divorce process employed. in the
collaborative process, the role of the neutral financial
professional is to assist the parties and their attorneys
with financial disclosures, including financial affidavits,
and evaluate settlement options. they will collect, review
and analyze the data from both parties, including assets,
liabilities and income. if one person owns a business,
they might examine the ledgers or come up with a
valuation. they also look at the assets owned by one of
the parties with a parent or other family member.
a typical question for the financial professional from
the parties is “What is a fair financial settlement?” the
financial professional, with assistance from the attorneys,
will begin the process of finding the answer to that
question and helping the clients settle the case.
What typically happens is that after the clients and
attorneys hold their first or second four-way meeting,
they decide to engage a financial professional to help
them resolve the financial issues. Ultimately, the financial
professional’s role is to assist the parties in finding the
best solution – one that will maximize the financial
benefits to both parties.
Every collaboration is differentin the collaborative process, the financial disclosures
and affidavits are very important because there are no
“If the parties have good lawyers and accountants, they will get the same result whether they litigate, collaborate or hire a neutral.”
—philip J. Shechter
depositions, interrogatories or subpoenas. With the
affidavits, the parties need to disclose their income, assets
and net worth. this is required in all cases.
But every collaboration works a little differently.
Sometimes the parties meet the financial professional
themselves, and sometimes the attorneys are present.
each party has the right to meet with the financial
professional alone, but only if the other party agrees.
Whatever the discussion, the professional’s answers must
be consistent. they cannot tell the husband one thing
and the wife something different. the accountant has to
have the flexibility to follow through with the rules of the
engagement which differ in each collaborative case.
typically, the accountant comes back to a later
four-way conference and presents the results of their
investigation. they prepare a binder of all the assets and
liabilities along with support documents, making it easier
for the lawyers.
the neutral financial professional is the keeper of the
records, which may be discoverable at a later date if there
is post-divorce litigation. the process must be explained
to the clients and the clients must give their explicit
permission for the accountant to keep the records.
Having a financial professional involved can benefit the
attorneys as well – after all, who gets sued later on if
there’s an issue regarding the financial information?
Reaching a settlement once a list of assets has been identified, the financial
professional will prepare equitable distribution charts
to help decide who gets what. assets can be put in one
column or the other and moved back and forth until
there is a resolution. it is very common that a husband
and wife will have different opinions about what certain
assets are worth, such as the equity in a home, the
value of a business, or personal property like jewelry.
the financial professional may need to prepare various
equitable distribution charts with different values.
in discussing a settlement, the financial professional
can offer ideas and make suggestions. For example:
Would refinancing a home be the right approach to
providing cash for one of the parties? What types of
investments would be appropriate for each party, and
what returns might they expect? Should one of the
parties transfer retirement benefits? Should they keep or
sell their rental real estate? What about health insurance?
if one of the parties is an employee of the family-owned
business, can that person be retained to maintain their
benefits? can the divorce date be extended in order to
reduce tax liabilities? these are complex issues that are
best discussed in front of the parties and their counsel.
the financial professional can also prepare child
support guidelines and advise on the tax consequences of
the settlement. one recurring issue is the deductibility of
alimony and ways to transfer the potential tax savings to
both parties.
“Having participated in over 2,000 cases in the past
ten years, i believe that the collaborative process works,”
said Shechter. “if the parties have good lawyers and
accountants, they will get the same result whether they
litigate, collaborate or hire a neutral. With collaboration,
it is the client who makes the decision – and sometimes
clients know the best way to resolve their differences.”
“When collaboration is done properly, the parties can
save at least 50 to 60 percent from the cost of a litigated
divorce. Best of all, they retain the possibility of actually
speaking to their spouse after the divorce, and their kids
may actually survive the process. it can be hard work
for the lawyers to keep the clients focused, but with
collaboration i see less anger between the parents and
more well-adjusted kids at the end of the case.”
COLLABORATIVE FAMILY LAW
page 6 The Collaborative Family Law Process
COLLABORATIVE FAMILY LAW INSTITUTE SponSored Section tUeSday, FeBrUary 16, 2010
Q. Can the collaborative law process be used in non-marital cases? What about unmarried or same-sex relationships?
Merlin: yes. the collaborative process can be used in
these cases, as well as for the negotiation of pre-nuptial
and post-nuptial agreements. if there is a split in a same-
sex relationship, the collaborative process is the ideal
way to resolve the issues because the judicial system in
Florida is not equipped to handle those matters.
Q. How do you handle it when one of the parties doesn’t want to compromise?
Merlin: the ultimate goal is for the professionals to help
the parties reach an agreement that meets the needs
of both spouses and any children to the maximum
extent possible. in collaborative law there are always
compromises, since the goal is to maximize the outcome
for both clients, not one or the other. one of the benefits
of this process is that the parties learn that mutually
respectful agreements can be crafted, which is especially
vital when dealing with children. in other words, we
teach them that it is okay to compromise – it is a sign of
maturity, not weakness.
Q. In the presentation, there was mention of a requirement that the attorneys would have to walk away if the process is not working. How do you address that situation?
Shapiro: in the 10 years i’ve been doing collaborative
law, that situation has never happened. in cases where it
appears the process isn’t going to work, we would turn
to the mental health professional and discuss if there are
steps that can be taken to make it work. if all the profes-
sionals agree that the collaborative approach cannot
work, we have an obligation to end the process and with-
draw. then, there is a 30-day window to assist the client
in finding a new attorney. there is no conflict of interest.
the client is not abandoned. the client can go on to find
an alternative collaborative counsel or go into litigation.
Merlin: We have an obligation to explain to the clients
what is likely to happen if they leave the collaborative
process. in one recent case, the parties told their
attorneys that they wanted to litigate. We recommended
an adjournment, then talked to our clients individually.
they decided to come back to the process and settled the
case.
Q. A lot of family law attorneys know about mediation. How would you compare collaboration to the mediation process?
Shapiro: every attorney who practices in Miami-dade
courts knows that mediation is mandated in divorce
cases. it is not voluntary. collaboration is voluntary, so
that’s one difference. Many of us have been in mediations
where clients are asked to sign agreements in the
eleventh hour of mediation. they are exhausted at that
point and just want to get it done. the basic principle
in collaboration is informed consent. in a collaborative
case, you’re working on one issue at a time, so that each
one gets your full attention. in collaborative cases we
are free to have mediators join us, and some members of
the institute are mediators. the other major difference is
that in mediation you always have the threat of litigation
hanging over your head. if you don’t settle, you’ll go to
court. collaboration removes that threat and takes the
court out of the equation.
Q. Does the collaborative process work when everyone is bitter, such as when a younger woman is involved?
Merlin: i represented a man who had an extramarital
affair and one whose wife had an affair. yes, the process
worked – although you really need to have a mental
health professional involved.
Q. Dr. Stern said a key element of the collaborative process is the concept of privacy to outsiders, although there is transparency among everyone. But Mr. Shechter said the financial records would be discoverable if the collaboration breaks down. Can you explain?
Shechter: as part of the collaborative process, the parties
agree on what to do with the documents in the event
of a post-filing action. the collaborative process itself is
sealed. the financial professional will burn a disc with
the relevant documents, provide the parties with copies
and memorialize it.
Shapiro: Let me point out that the documents are
discoverable only on agreement of the parties in writing
– that’s to provide safety for both parties.
Q. I have been trained as a mediator. It’s not the mediator’s job to make the deal but see that the parties are empowered to make their own decisions. Why not utilize mediation in the collaborative process as a tool?
Shapiro: We do use mediators in the process, both
attorneys and other trained professionals. they can be
vital to the process.
Q. Can the collaborative process be scaled down for people with limited means?
Shapiro: yes. Most of my clients are moderate-income
people, who can’t afford lengthy litigation, and endless
depositions, requests for production and discovery. one
of the cost-saving steps in collaboration is that people
with limited means probably don’t need to engage a
financial expert. the mental health professional, though,
should be there. Just in the time savings alone, the
collaborative process helps people do divorce in a more
affordable way.
Merlin: there is no reason the collaborative process
can’t be used on a pro bono basis, either.
Q. Do you always disclose your client’s information?
Shapiro: in a collaborative case, i always tell my client that
relevant information needs to be shared.
Stern: if information is shared with me that could affect
the outcome, and the person doesn’t disclose it during
the collaborative process, i would withdraw from the
case.
Q. What about confidentiality if the process breaks down?
Shapiro: everything in the four-way conference is confidential – just like mediation. if you have to share information with new counsel, the parties have to agree to do so; otherwise, it will not be disclosed.
Merlin: there are two legal issues here: confidentiality and privilege. if the parties leave the process, they would have to respect the legal privilege. Basically, if you leave the collaborative process, you have to start over again.
Shechter: My concern as the financial professional is a post-litigation issue. if the lawyer and accountant can’t talk about the case, what happens with the evidence presented? there will be new lawyers and accountants involved. So it is important for the accountant to record what was done. that can save the clients 100 to 200 hours of professional time in a post-litigation case. For instance, the new accountants could look at an income chart or business valuation and see what we did in the case.
Q. Have you encountered collaborative cases with a pre-nup agreement in place?
Merlin: i have not, but there is no reason it would not work. again, with the collaborative process, you can sit down and resolve everything.
Shapiro: in fact, i think collaboration is the ideal situation for pre-nups. in this era both parties should be demanding that pre-nups be done in a collaborative process. What could be better for their future together?
Q&A
COLLABORATIVE FAMILY LAW INSTITUTE SponSored Section tUeSday, FeBrUary 16, 2010
The Collaborative Family Law Process page 7
Legal Steps in the Collaborative Process1 the parties meet in joint conferences until an agreement is
reached.
2 a settlement agreement is then signed and filed with the court with a simple petition and answer signed by both parties. the petition is very simple without any accusations about either of the parties or details of their financial situation.
3 an uncontested final hearing is held where one or both parties appear to finalize the divorce.
Robert J. Merlin, Esq.attorney robert J. Merlin is a partner in the
Law offices of robert J. Merlin, p.a. and the
president of the collaborative Family Law
institute.
practicing law in the State of Florida for 30
years, Merlin is Florida Bar Board certified
in Marital and Family Law and specializes in
marital and family law, especially collaborative
family law as a means of amicably dissolving
marriages and resolving family disputes. He is
also a member of the association of Family and
conciliation courts, the eleventh Judicial circuit
court parenting coordinators advisory Board
and the University of Florida Levin college of Law center on children and Families
advisory Board.
Merlin is a member of the international academy of collaborative professionals,
collaborative Family Lawyers of South Florida and many other legal associations. He
also has a long history of involvement in various community organizations, and is a past
chair of Jewish community Services of South Florida, inc.
Law Offices of Robert J. Merlin, P.A.95 Merrick Way, Suite 420, coral Gables, FL [email protected] • www.merlinlaw.com
Brenda B. Shapiro, Esq.Brenda B. Shapiro is a family law attorney who
provides legal counsel to clients on family law
matters, including prenuptial and postnuptial
agreements, divorce, child custody, access and
time sharing, post-dissolution, domestic violence,
and grandparents’ rights. She established the Law
offices of Brenda B. Shapiro, LLc in 1994, where
she is managing partner.
Shapiro also practices collaborative law, a
dispute-resolution method that emphasizes
family-focused decision-making, cooperation,
commitments to a faster process, potential cost
savings and family privacy – all without court
intervention. She is a founding director of the collaborative Family Law institute.
Shapiro was a cooperating attorney in writing the brief for Miami’s high-profile
custody case of six-year-old cuban elian Gonzalez, who arrived in the United States on
an inner tube without his mother, who died in the crossing.
The Law Offices of Brenda B. Shapiro, LLC courthouse tower, Suite 2100, 44 West Flagler Street, Miami, Florida 33130 305.577.3861
www.bbshapirolaw.com • [email protected]
Lana M. Stern, Ph.D.Lana M. Stern, ph.d., is a Licensed psychologist
and Licensed Marriage and Family therapist
who has been in private practice in coral Gables
for 25 years. She is a member of the american
psychological association, Florida and dade
county psychological associations and the
international association of collaborative
professionals.
She is vice president of the collaborative
Family Law institute, chairperson of the Mental
Health committee and member of the executive
and Marketing committees. She is the Miami-
dade delegate representing mental health for the
collaborative Family Law council of Florida.
Stern has served as an educator, counselor, and trainer for the Human Growth and
development program in Miami-dade county public Schools. She has expertise in
treating depression, anxiety disorders, trauma, child sexual abuse and works with
couples/divorce counseling, individuals, adults and adolescents. She is an adjunct
professor at Florida international University.
Lana M. Stern, Ph.D.1450 Madruga avenue, Suite 310, coral Gables, FL [email protected]
Philip J. Shechter, CPAphilip J. Shechter, cpa*/aBV, cVa, is the lead
partner in the Litigation Support and Business
Valuation practice for Berenfeld Spritzer Shechter
& Sheer LLp in coral Gables. the practice has
more than 15 forensic accounting professionals
who handle the firm’s commercial litigation and
marital dispute resolution cases.
Shechter, who is treasurer of the collaborative
Family Law institute, frequently serves as a
“neutral cpa” in divorce matters, working
jointly with both the husband and wife. in this
capacity he performs a lifestyle analysis; prepares
a schedule of assets and liabilities; calculates
alimony and child support; and values businesses and other assets.
Shechter is a Florida Supreme court-certified Family training program trainer, and
a member of the Business Valuation institute, collaborative Family Lawyers institute
and institute of Business appraisers.
Berenfeld Spritzer Shechter & Sheer LLP2525 ponce de Leon Boulevard, 5th Floor, coral Gables, FL 33134305-274-4600 [email protected] • www.berenfeldllp.com
* Regulated by the State of Florida
www.collaborativefamlaw.com
COLLABORATIVE FAMILY LAW INSTITUTE SponSored Section tUeSday, FeBrUary 16, 2010