Winter 2021 of the Family Law Section’s Commentator

Collaborative Law Group Launches Amid ADR Growth

The collaborative law process is gaining traction among family law attorneys after a 2016 change in state law.

South Florida is famously litigious, but a new family law firm in the region aims to use a recently established form of alternative dispute resolution to resolve family matters outside the courtroom.

Author: Dan Roe

Origins of Collaborative Law

In 1990, a Minnesota family law attorney named Stu Webb began promoting what he deemed “Collaborative Law,” or the practice of law separating out trial work and creating negotiation specialists.  Collaborative Law is now used in South Florida, throughout Florida, and around the world, as families have realized that they don’t want to be placed in the adversarial proceedings of trial practice for divorce and other personal matters.

On February 14, 1990, Webb wrote a letter to The Honorable A.M. “Sandy” Keith,
a Justice of the Minnesota Supreme Court, describing Collaborative Law.  Below is the text of the letter:

Dear Sandy:

I met you at a party at Steve & Marilyn Erickson’s several years ago. I was interested in your involvement with mediation. I also heard you talk last November at the Conference for Dispute Resolution Practitioners Seminar.

I, too, took Steve and Marilyn’s mediation training and have done mediation, mediation wrap-ups and, generally, have been vitally interested in exploring alternative dispute resolution in all its manifestations.

I think I’ve come up with a new wrinkle that I’d like to share with you. One of the aspects of mediation that I feel is a weakness is that it basically leaves out input by the lawyer at the early stages (sometimes that’s an advantage!). By that I don’t mean adversarial, contentious lawyering, but the analytical, reasoned ability to solve problems and generate creative alternatives and create a positive context for settlement. Of course, these attributes of good lawyering are not utilized greatly in the usual adversarial family law proceeding either.

But you and I have both experienced, I’m sure, those occasional times, occurring usually by accident, when in the course of attempting to negotiate a family law settlement, we find ourselves in a conference with the opposing counsel, and perhaps the respective clients, where the dynamics were such that in a climate of positive energy, creative alternatives were presented. In that context, everyone contributed to a final settlement that satisfied all concerned—and everyone left the conference feeling high energy, good feelings and satisfaction. More than likely, the possibility for a change in the way the parties related to each other in the future may have greatly increased. As a result, the lawyers may also develop a degree of trust between them that might make future dealings more productive.

So my premise has been: why not create this settlement climate deliberately? I propose doing this by creating a context for settling family law matters by, where possible, removing the trial aspects from consideration initially. I would do this by creating a coterie of lawyers who would agree to take cases, on a case-by-case basis, for settlement only. The understanding would be that if it were determined at any time that the parties could not agree and settlement didn’t appear possible, or if for other reasons adversarial court proceedings were likely to be required, the attorneys for both sides would withdraw from the case and the parties would retain new attorneys from there on out to final resolution.

I call the attorney in this settlement model a collaborative attorney, practicing in that case collaborative law.

The advantages of this collaborative-law model:

  1. Each party is represented by an attorney of his/her choice. (This is usually not the case in mediation until after the mediation has been completed.)
  2. This allows the lawyers to be focused in the settlement mode without the threat of “going to Court” lurking just around the corner. In the normal situation, settlement is often by-passed initially while the parties posture and the lawyers work on discovery.
  3. There is continuity between settlement and processing the final dissolution. (This is usually not the case in mediation with the resulting problem of the lawyers not liking the mediated settlement.)
  4. With the focus on settlement and avoiding court, the lawyers and clients are motivated to learn what works to achieve settlement; how to problem-solve without getting “plugged in” to the emotional content (a la “War of the Roses”). Lawyers who participate in this program will be motivated to develop win-win settlement skills such as those practiced in mediation (just like they now focus on sharpening trial skills).
  5. Lawyers are freed up to use their real lawyering skills, i.e., analysis, problem solving, creating alternatives, tax and estate planning and looking at the overall picture as to what’s fair.
  6. Four-way conferences become the norm with positive energies being generated (because that’s where the creative solutions lie) as all work collaboratively for a fair settlement. As in mediation, the potential is high for the clients to have a lot of input.
  7. Clients and potential clients get an orientation in which they are advised of the advantages, including cost savings, of this approach and 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.
  8. When cases don’t settle and new attorneys are retained for trial, the clients have had the best shot both ways, i.e., a settlement specialist and a trial specialist (in my experience they usually don’t come in the same package).
  9. Settling matters on a collaborative basis is just more fun!

Practically, I am in the process of having lunch with some of my family law attorney-friends and inviting them to be open to participate in a collaborative model, should the occasion arise. The only requirement, as I’ve said, is an understanding by all concerned that the two attorneys would withdraw at such time as further settlement efforts appeared fruitless. The reception I have received has been encouraging.

Eventually there might be a referral listing for use by prospective clients enumerating lawyers willing to handle a matter on a collaborative basis.

Personally, about four months ago, I made the final moves to abandon my trial practice (which was already slanted toward settlement) to devote myself exclusively to a family law settlement practice. This means that I have unilaterally declared that I will not go to court in an adversarial matter. My practice is fun again!

Among other things, I spend a lot of time educating clients and prospective clients on the merits of settlement–however that can be achieved—-and of avoiding unnecessary or premature use of the courts. I also stress the mindset that is optimal for settlement. Enclosed is an article I published which I hand out and find useful in helping clients center themselves for productive settlement work.

Because of your interest in this field and the fact that we both know there’s “got to be a better way” of resolving most of these matters, I wanted to give you the above outline of what I’m up to. I would be most happy to discuss this—-or other settlement alternatives—-with you further at your convenience if you should wish to do so.

I apologize for the length of this letter. If nothing else, however, it has helped me to get my thinking on this subject somewhat organized.

Very truly yours,
Stuart G. Webb

Give Giving a Go

In one of my recent collaborative cases, the parties were stuck negotiating between two numbers. They were not far apart, certainly not far apart enough to warrant litigating or even mediating. They were stuck and dug into their positions. Our very experienced team with excellent professionals was having difficulty getting them to move from their dug-in trenches. The settlement facilitator had a private meeting with both spouses. She reported back that she allowed them to each voice their concerns, discuss their perception of why what he/she was asking was fair. Each of them was heard by the other. At the end of that meeting, she asked each of them to approach the rest of the process from a perspective of what he/she could give, rather than what he/she could ask of the other. By focusing on what each was able to give we were able to resolve the case. Interestingly we ended up on one of the parties number, but that party was able to give on other issues that made the resolution possible.

This case reminded me of the principles taught by Bob Burg and John David Mann in The Go-Giver. If you have never met Joe in this parable be sure to check it out to see what he learns on his journey to uncover the following five principles.

  • The Law of Value: Your true worth is determined by how much more you give in value than you take in payment.
  • The Law of Compensation: Your income is determined by how many people you serve and how well you serve them.
  • The Law of Influence: Your influence is determined by how abundantly you place other people’s interests first.
  • The Law of Authenticity. The most valuable gift you have to offer is yourself.
  • The Law of Receptivity: The key to effective giving is to stay open to receiving.

By focusing on theses principles and on what you can give rather than what you can get, you can achieve success in business and life in a much more fulfilling way than by being a go-getter. You do not have to accumulate wealth or possessions to give something to someone. Everyone has the ability to give. It could be as small as a smile or a helping hand. Even though we are in a service industry, a lot of times it is easy to forget we are here to serve.

I challenge everyone to think about what you can give – in your relationships at home or at work, in your practice with your clients, employees and other professionals. I anticipate the results will surprise and please you.

A Working Parent’s Paradigm Shift

My firm started working from home during the pandemic, and my kids, Landon, age 7, and Kendall, age 4, switched to schooling from home around that same time.

Overnight, I became a stay-at-home mom and homeschool teacher, in addition to my roles as attorney and business owner. Now I not only needed to fill my days with drumming up work for my employees and keeping my worried clients calm, I also needed to keep my kids entertained and somehow squeeze in time to supervise homeschooling.

Before Coronavirus, when my kids were in school and I was working at the office, the time in my commute between office and home was enough for me to decompress and shift into Mom-mode before interacting with my kids. Now, every parent with kids at home experiences little-to-no separation between work-mode and home-mode.

For me, it is important to try and create a little transition time between my work and the time I spend with my kids. Whether that be a quick run or enjoying a glass of wine, it allows for an opportunity to clear my mind of the stresses of the day. Often times, it is hard to find that separation when your computer and work are right in front of you in your home. It takes a great deal of self-discipline to shut it down and move into family mode.

As a Collaborative attorney, I recognize that I have an easier time than most “taking off the lawyer hat.” Traditionally, litigation rewards the most combative and competitive drive in warring attorneys. These old behaviors and metrics of success are not what I want to cultivate in my career or in my children. My kids deserve a mom who can be patient, fun, and lenient. Collaborative cases help me keep a calmer and more peaceful presence both with clients and at home with my family.

The paradigm shift from litigation to Collaborative attorney requires a fundamental change in mindset. We, as Collaborative practitioners, must change our ways from adversarial to cooperative, focus on the future instead of the past, look at relationships and not facts, and become problem solvers.

This change is not dissimilar from when I need to transition from working professional to fun parent.

As a parent, it can be hard to watch Landon and Kendall sometimes inflict cruel and unusual punishments on one another. Landon has, on more than one occasion, broken his sister’s toy when she refused to give up playing with one of his. Kendall prefers corporal punishment and hits her brother when verbal communication fails to generate her desired results.

Both of these behaviors take every ounce of my problem solving and interest-based negotiation skills to assist them in resolving the issue at hand. Often I lose my patience; however, falling back on my training as a Collaborative practitioner helps me to focus on their relationship as opposed to who is “right” in an argument. Often times, I can resolve their issue that way, much like in my Collaborative Practice.

Sometimes it is as simple as having them separate to different parts of our home to work on a project that diffuses the situation. Setting up separate work stations for them during the pandemic has really helped us.

Parenting is a work in progress on a good day, and the pandemic has brought out the best and worst in each of us. I don’t get it right every time, and certainly not every day. That said, I know I can rely on my Collaborative practice training to make the best of a bad situation.

Christen Ritchey is a family law attorney and partner with Johnson, Ritchey & Feldman in Boca Raton, FL. She is the secretary of the South Palm Beach County Collaborative Practice Group and Co-Chair of the FACP Outreach Committee.

Using an Allied Professional in a Collaborative Matter

In one of my recent collaborative cases, the parties owned a complicated business entity and were seeking a way to stay business partners while dissolving their marriage.  Usually we would not want divorcing spouses to remain in business together, however here it made sense based on the financial circumstances for these parties to do so.  They were in agreement and had the wherewithal to handle it.  In the event we had litigated this case, the business would have been a party to the action and more likely than not shares would have been liquidated to distribute to the parties, this would have been a terrible financial option for both parties and the business. We needed to figure out what life would look like for them after the dissolution, when they would no longer be life partners, but would remain business partners.

The problem for the team was figuring out how to structure this new arrangement to protect both spouses, and to enable the business to continue running smoothly.  Complicating matters further was the need for approval from an overarching entity.  In addition the parties wanted to ensure protection of their children in the event anything happened to either of them.

The team made the decision to hire a corporate attorney as an allied professional to assist.  The first step was to bring the option to the parties at a full team meeting.  They agreed to retain him jointly on behalf of the business.  He was instrumental in getting this particular case completed for them.

The settlement facilitator, Laura Richter, explained, “As is stated in the IACP code of ethics, in order to fully address the client’s needs, interests, and goals, we as professionals must be willing to retain other professionals with special expertise. Since this case required expertise in matters relating to corporate law and contracts, which would have been outside of the purview of any of the professional team, Greg’s guidance and expertise gave me the confidence as facilitator to know that we were providing the client with the best counsel possible, given the intricacies of the case. And when matters came up where the client had questions or objections, Greg was best able to handle them as an expert in his field; and our clients were able to hear him.”

The Financial Neutral, Ronald Patella stated this:  “I thought Greg was responsive and on point for all of our questions and issues.  He was knowledgeable and easy to work with. I would certainly recommend him to other professionals.”

And Mara Bernstein, the other spouse’s attorney advised the following:

“Divorce is multidimensional event.  As collaborative professionals, our team addresses the legal, emotional and financial aspects of our clients’ divorce.  There are however times when the issues raised in our cases go beyond the expertise of  the collaborative professionals.  As a team, it is our responsibility to provide our clients with access to resources that will enable them to successfully reach a doable and durable Marital Settlement Agreement.  We did that by bringing Greg into our case as the corporate law issues were beyond our purview.  Greg provided the team with the counsel and advice to go forward to a successful completion of the case where we were confident that both parties were properly represented and advised.”

The “Greg” in the statements above is Greg Mitchell, a corporate attorney with Marshall Grant, PLLC.  Even though we had a full team, two attorneys, neutral facilitator, and financial neutral, none of us was qualified to prepare the corporate documents to protect the parties, their business, and their children’s interests post dissolution. Mr. Mitchell’s contributions were well-received by the full team.

Collaborative practice allows all involved parties, clients and counsel, to take the ego out of these cases. The clients are coming to the professionals to let them handle the manner in the best way possible and we, as experts in our area, know where our limitations lie. We do not always have the expertise to handle all of the issues. By bringing in an allied member for our team, we are able to leverage our individual areas of expertise and expand to provide better service for our clients.

To all of those potential allied professionals, corporate lawyers, estate planning attorneys, real estate professionals, mortgage brokers, appraisers, child therapists, reunification therapists, substance and alcohol treatment providers, financial advisors, and many more, please join your local practice group and get collaboratively trained!  We may need you as an allied member on the next case.

Christen Ritchey is a family law attorney and partner with Johnson, Ritchey & Feldman in Boca Raton, FL. She is the secretary of the South Palm Beach County Collaborative Practice Group, Board Member of FACP and the Co-Chair of the FACP Outreach Committee.