March A COLLABORATIVE APPROACH TO DIVORCE By Stephen D. Thompson, Esq. & Sheldon E. Finman, Esq.

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1 March 2006 The practice of Collaborative Law has been building for several years. For a while, professionals were mainly going to training workshops and learning about this new process. Now, around the State, more and more attorneys are successfully completing cases by the use of the collaborative method, with the help of other collaborative professionals. Although many of you may be familiar with the process, it is always well to continually re-emphasize what it is all about. Here is a well-written article by two FLAFCC members who are Family Law attorneys practicing in Fort Myers. A COLLABORATIVE APPROACH TO DIVORCE By Stephen D. Thompson, Esq. & Sheldon E. Finman, Esq. In the traditional approach to divorce, each side lawyers up, makes threatening noises to the other, and begins to rapidly drain their marital resources accumulated over the many years of their marriage. The traditional adversarial process is at its core designed to pit both sides against each other under the theory that the truth will emerge ( set you free ) from the fray. Lawyers advocate the legal rights of their clients. Typically, six months or so of hostilities will ensue without significant progress on either side. Both sides will typically spend $5,000 to $20,000 each to participate in this competition. After everyone is thoroughly angry, anxious, fearful, emotionally and perhaps financially exhausted, both sides and their attorneys finally sit down together to mediate in a climate of anger and mistrust. Both sides search for some agreement that might still be found in the wreckage of what was formerly a loving, caring relationship which is now ending. They most likely may agree on the lowest common denominator when agreement is still possible. Imagine instead a divorce where both parties hire lawyers to work with them to find an optimum solution for both sides. Each collaborative attorney works as a legal advisor and settlement specialist, and all four work together in a cooperative, non-adversarial process with a mutual goal of reaching a fair settlement of all issues. This process encourages creative win-win negotiation and resolutions that meet the needs of all members of the family. Collaboration is mediation on steroids since the lawyers / mediators can and do give advice throughout the process. Binding commitments (which are absolutely voluntary and intended as such) are made by both parties and their respective attorneys to voluntarily disclose all financial and other relevant information, to proceed respectfully and in good faith in settlement negotiations, and to refrain from the threat or use of litigation. The parties agree that they will not go to court and if anyone decides to do so, both collaborative attorneys must withdraw from further involvement. Both parties would then retain new attorneys to represent them in court in the traditional adversarial process.

2 Collaboration uses the problem solving approach described by Harvard s Negotiation Project rather than a positional negotiation or legal rights approach. Agreement is reached when everyone agrees on the best solution available after exploration of the multitude of options. Imagine a respectful discussion mediated by two experienced attorneys that make suggestions about choices which could be made (instead of demands that the other agree to a position developed to favor one side over the other). Imagine everyone rowing in the same direction instead of every man and woman for themselves. Both parties and their attorneys communicate and negotiate directly with one another in structured four-way settlement meetings. If needed, experts are brought into the process as neutrals jointly retained by the parties. Meetings can be expanded to include a financial planner, accountant, child expert, or informal business valuator. Each neutral expert would contribute the assistance which their training and experience make them uniquely qualified to provide. The number and duration of meetings can vary, although typically two to three hours is a productive period of time for each meeting. Homework involving obtaining additional information, attending parenting classes, trying out temporary parenting plans, and building a new future is typically accomplished between meetings. The collaborative approach is a more respectful way to resolve family disputes as neither side is bent on tearing the other down. Instead, they are directed toward leaving relationships as intact as possible after the marriage itself has ended. After all, parties are still frequently part of an extended family and may in fact be friends when everything is done. They just won t be married anymore. Most people realize it is not necessary or even helpful to remain angry and hateful to each other. Collaborative lawyers attempt to restructure family relationships, de-emphasizing the negative connotation of divorce. The collaborative approach works well for a range of people going through a divorce, working well for very difficult cases, even those extreme cases where emotional or physical violence has occurred in the past. Studies of mediation and our own experience suggest that clients who are better educated and of higher socioeconomic status tend to be more likely to select the collaborative approach. Clients that place their children first are also significant participants in the collaborative process. We have found in our typically challenging engagements many potential obstacles which may impede resolution. We, therefore, strongly suggest the attorney engaging in this process be trained. It is helpful if the attorney is also a trained mediator. This is not easy work nor a haven for burnt-out adversarial practitioners. However, we have derived significant satisfaction in helping and healing our clients in this process. We look forward to an ongoing discussion with you as we explore the process of collaborating to resolve family disputes including divorces.

3 ADDITIONAL RESOURCES The following books are helpful in understanding the collaborative or problem solving approach to resolving family disputes: Collaborative Law - Achieving Effective Resolution in Divorce Without Litigation by Pauline H. Tesler, Esq., Section of Family Law, American Bar Association (2001). The first book on Collaboration in the United States. An excellent introduction to collaboration. Collaborative Family Law: Another Way to Resolve Family Disputes by Richard W. Shields, Judith P. Ryan and Victoria L. Smith, Thomson Canada (2003). The first book published in Canada providing the Canadian perspective. Full of useful ideas and practices. Collaborative Practice: Deepening the Dialogue by Nancy J. Cameron, The Continuing Legal Education Society of British Columbia (2004). Provides thoughtful and reflective insight on the journey from traditional positional litigation to collaborative problem solving. AFCC 43rd Annual Conference Juggling Conflicts, Crises and Clients in Family Court May 31- June 3, 2006 Westin Innisbrook Resort Tampa Bay, Florida Have you registered yet for the first ever AFCC Annual Conference in Florida? Register and get all your friends and co-workers to register! Go to: and register online. We have a challenge presented! What follows is an excerpt from a message from Peter Salem, AFCC Executive Director: "Greetings fearless Florida AFCC leaders! I am pleased to let you know that the early returns are in (after the early bird deadline) and as of March 20 we had 408 registrants for the conference and our room pick-up at the hotel is already at 95%. Please tell any colleagues that might be attending to make room reservations asap if they ve not already done so. We are hoping for 650+ in attendance so we still have a way to go, but we are off to a good start. Thank you all for the work you have done so far in promoting the conference amongst your colleagues in Florida. I am pleased to say that with 82 Florida registrants you have already surpassed the number of Washington residents attending our Seattle conference (77). However, you are lagging behind the 131 Texans who attended San Antonio conference in " Let's accept the challenge!

4 Family Law Educational Reform The Family Law Education Reform Project is an initiative lead by AFCC which endeavors to reform the way law schools educate their law students. The hallmark of this effort is to turn out new lawyers who are well trained and skilled in utilizing the non-adversarial methods of approaching a family law case. Over a year into the project, we are gaining more and more support from law schools and family law professionals around the country. We are on the verge of creating actual classroom and practicum models to achieve the final step of this reform. In case you have not already read it, the Forward to the FLERP Report is copied below to give you an over-view of what we are attempting to do, and why. Foreword to the Report of the Family Law Education Reform Project From Neglected Stepchild to a Valued Member of the Law School Curriculum By: Andrew Schepard and Peter Salem Family law practice has undergone dramatic change in the last quarter century, perhaps more any other area of practice. Virtually everything about it has changed - the role of the family court, the procedure for resolving family disputes, the role of the family lawyer and the substantive law. It is a vibrant and exciting field, with great influence on the lives of families and children. The family law curriculum in our law schools, however, does not reflect either the change in practice or it vibrancy. The Growth of Collaborative Dispute Resolution for Families In the last quarter century, the process of resolving legal family disputes has, both literally and metaphorically, moved from confrontation toward collaboration and from the courtroom to the conference room. Resolving legal family conflict under the classic adversarial model is often lawyer-centered and rights-based activity. Settlement negotiations are typically distributive, comprised of a series of telephone calls between lawyers with each periodically contacting his or her client to provide information and advice. The process encourages parties and their lawyers to think of themselves as adversaries - a gain for one is a loss for the other- and resist making concessions. Failing a negotiated settlement, a judge adjudicates disputed legal issues between members of a family (or between family members and the state) based on evidence presented by counsel for parties, statutes and precedent. The collaborative model of family law dispute resolution takes an interest-based approach and is more likely to include active participation by the clients themselves, e.g., as participants in a divorce education program, a four-party settlement conference or in mediation. While lawyers serve as advocates, a greater emphasis is placed on (1) the role of legal counselor and advisor, (2) working to identify a resolution that meets the needs of all family members, and (3) interpersonal or emotional issues that frequently underlie the legal dispute. As in the adversarial model, the last resort remains a judicial decision based on the legal issues in dispute. The adversarial and collaborative models may not be as clearly differentiated in actual practice, which may blend the two together, as in theory. But the classic adversarial model faces significant challenges functioning effectively in today s family court for the great majority of cases. Today s family court docket consists of an avalanche of cases and available data indicates that the majority of litigants are pro se (self-represented). The adversarial model is also under scrutiny because litigation frequently increases the bitterness and long lasting harm to relationships between family members and children rather than addressing their needs and continuing relationships. Finally, many have criticized the adversarial model for the added expense and delay it requires in the resolution of family disputes.

5 In many jurisdictions, today s family court judge is more than an adjudicator. In addition, he or she may oversee a multi-disciplinary group of service providers all engaged with the children and families whose cases are before the court. Many jurisdictions have created unified family courts that group a range of issues - from divorce and custody to juvenile crime to child support - under one courthouse roof, with a single judge deciding all legal issues relating to a single family. Many jurisdictions have created specialized courts for domestic violence, drug abuse, and permanency planning, courts which compel litigants to participate in both mental health and social services designed to serve therapeutic and rehabilitative goals. Some jurisdictions have created multi door family courthouses. Today s family courts incorporate and frequently mandate a wide variety of dispute resolution options (e.g. mediation, family group conferencing, educational programs, parenting coordinators, early neutral evaluation for parenting and financial maters, arbitration) to resolve disputes without adjudication. When disputes are adjudicated, family courts increasingly rely on neutral expert reports from professionals in disciplines (e.g. mental health experts, financial appraisers) appointed by the court rather than hired by a party. Negotiated settlements reflect the influence of these expert reports and are thus more informed. The Changing Role of the Family Lawyer The role of the family lawyer is also evolving to keep pace with changes in the family law system. Many argue that family lawyers should have different ethical responsibilities than lawyers in traditional civil and criminal cases, including a responsibility to discuss alternative dispute resolution with their clients, and an obligation to do no harm to their clients children. Today s family lawyer must be fully equipped to work with professionals from different disciplines and multiple dispute resolution processes in an increasingly complex and differentiated system. The traditional full service adversarial models of lawyer representation is increasingly being challenged by emerging models that call for problem solving, collaboration and unbundled (limited task) representation. Today s family lawyer may function as: Counselor dealing with an emotionally stressed client Financial or tax advisor planning for a post divorce future Collaborative negotiator who seeks interest based, problem solving solutions for disputed issues Mediator Representative of a party in mediation (mediation advocate) Provider of unbundled legal services (limited task representation) providing discrete legal advice to a client on a particular topic Member of a collaborative law practice group Child s lawyer or guardian ad litem Parenting coordinator A member of a parent education team Courtroom advocate dealing with expert testimony of court appointed mental health and financial experts Judge, magistrate, referee in a unified family court or a specialized problem solving court focusing on permanency planning or domestic violence or in a traditional courtroom.

6 Increasingly Complex Substantive Law Concurrently, social, political and intellectual developments of the last quarter century have transformed and complicated family law. A listing of just some of the recent developments makes the point: covenant marriage; no fault divorce; making inchoate property (stock options, pensions, intellectual property rights, partnership arrangements) divisible at divorce; recognition of marital and pre-martial contracts; financial and parenting rights for cohabitants, statutory formulas for child support; joint custody and parenting plans; third party and grandparent visitation rights; same sex marriage and recognition of alternative family forms; greater emphasis on domestic violence and child abuse and neglect; surrogate parenting; an effort to reduce time in foster care and increase the speed of adoption; international treaties seeking to reduce child abduction and recognize the rights of children. The Family Law Education Reform Project Report The Report of the Family Law Education Reform Project (FLER) examines the relevance of today s family law curriculum to the rapidly changing world of family law practice. It documents a significant gap between education and practice that calls into question the quality of representation that future family lawyers will provide. Despite the enormous challenges of modern practice, and the high stakes for parents and children, family law remains the stepchild of the law school curriculum. There are efforts to modernize underway, but they are isolated and non systematic. Concepts critical to the effective representation of clients such as the therapeutic role of the family court, mediation and alternatives to litigation, the changing roles of family lawyers in unbundled and collaborative representation, the role of interdisciplinary professionals, interviewing and counseling clients in emotional distress, civility and ethics, and basic child development are simply not covered in the most family law curricula. Few students are trained in essential representational skills such as interviewing and counseling clients in emotional distress in family law courses. We hope that the FLER Report will be a spark to ignite active consideration of how to make family law a wanted and energetic member of the law school curricular family that will train future practitioners for the challenges ahead. We also hope that it will spark a strong collaboration between law schools and the professionals who work in the family court - judges, lawyers, mediators, mental health and financial professionals- that will make the training of future professionals relevant, alive and vibrant to attract the best and the brightest to family law practice. Our Recommendations The Recommendations of the FLER Report are primarily directed to law professors as individuals and suggest curricular enhancement opportunities they might want to undertake in their courses. The recommendations we make in this Foreword go further and are addressed to law school deans and faculties who have the responsibility for making curricular and resource allocations decisions for the law school as a whole. Our recommendations are also addressed to the family law and court stakeholders outside of academia -- judges, lawyers, mediators, mental health professionals, social service professionals, financial experts. We ask those practitioners to approach your local law school about how you can help. The law school family law curriculum needs to creatively engage you in the training and education of the future family law practitioner. In return, you should give generously of your time and expertise in training future family lawyers.

7 Curricular Reform Law schools should reevaluate their family law curriculum to include subjects like: Goals and objectives of family dispute resolution (i.e., the tension between rights, needs and interest of parent, children and families) The appropriate role of the family court and the family court judge The multiple roles and ethical responsibilities of the family lawyer (children s lawyer, best interests lawyer; advocate, mediator, mediation advocate, legal counselor, unbundled advisor, collaborative lawyer, parent coordinator) Role of allied professionals (mental health experts and financial professionals) in family dispute resolution Dispute resolution processes Unrepresented litigants Family violence In addition, the law school curriculum should make available opportunities for skill development for those students who wish to practice family law through a combination of course work and experiential methods including instruction in: Interpersonal skills including interviewing and counseling (active listening), especially with clients in emotional distress Negotiation Mediation representation Advocacy working with court appointed mental health and financial experts, both in the negotiation room and the courtroom Law office management Screening for domestic violence Screening for child abuse and neglect Family Law as a Required Course Given the importance of families and family law to society and the legal system, we suggest that law schools consider making a basic family law course required for all law students. Advanced Training On the other end of the curricular spectrum, the increasing challenges of modern family law representation suggest that law schools should offer many elective courses beyond the basic family law course. They should also consider certificate programs, concentrations and advanced degree programs for those wishing to specialize in family law.

8 Involving Stakeholders in the Family Law Curriculum Family law professionals - judges, lawyers, mediators, parent educators, mental health experts, financial planners, can become actively involved in the family law curriculum by participating in projects like: Serving on a law school interdisciplinary family law advisory committee Guest lecturing and adjunct teaching Mentoring Providing opportunities for law students to observe court proceedings, negotiations and mediations Opening memberships in professional associations to law students Supervising pro-bono opportunities such as help centers, intake Providing job counseling and advice. Family courts, where proceedings are often confidential and closed, should especially make efforts to insure that future lawyers understand their mission and operations. They should open their doors to law schools through externship programs and for field work observations, allowing students opportunities to participate in their processes to the maximum extent feasible. Professors O'Connell and DiFonzo and deserve our gratitude. Their task was formidable: to write a report that merged the observations of dozens of professionals from many disciplines and could be used as a catalyst for reforming family law education. The Report's main goal, therefore, is to inform and persuade law professors, because they are the gatekeepers to family law education reform. The reporters used the expertise and keen insights of the participants to create a document which will help law professors to understand how to make the journey from current law teaching to a more effective family and child-centered approach educating future family lawyers. We also wish to thank all of the Project participants who were so generous with their time, energy and ideas. Their observations form the core of report and their passionate conviction is its driving engine. The combined efforts of these individuals have created an ambitious agenda for change that will benefit future family lawyers, law schools, courts and, above all, parents and children. We encourage law schools, family court professionals, and bar regulators to begin now to discuss how to shape education to help future lawyers become excellent family law practitioners. We look forward to continuing to participate in that effort. THE FLAFCC ANNUAL GENERAL MEMBERSHIP MEETING At 5:00 PM on June 1, 2005 Westin Innisbrook Resort Tampa Bay, Florida Registration at the AFCC Annual Conference Juggling Conflicts, Crises and Clients in Family Court Not Necessary for Participation

9 Florida AFCC: Who Are We? From last month's Newsletter: Note from the Editor: I recently looked up our current membership numbers on the parent organization's records. There were 155 members listed with addresses from all over the State, and even some from other States. The variety of professions represented was impressive. As I scanned this list, the thought occurred to me: "What would the stories be if I briefly interviewed all these members? What would be their reasons for joining AFCC and the Florida Chapter, and what is their professional practice like? I decided to find out! I picked a couple of names at random, and here are the results. I think I'll try to do this each month. Continuing our quest to find out who we are! Gary Feder, CPA Gary is a lifelong resident of Florida, born in Coral Gables, and still practicing as a CPA in Dade County. He has been practicing since 1978 (maybe soon he'll get it right and stop practicing), and has been a mediator since 1992, becoming certified in family law mediation. For the last year and a half, he has taken a larger role in mediation. He originally practiced as a CPA in a large firm and then a mediumsized firm. He now has his own solo practice. He assisted attorneys in litigation support in family law and child support cases, but found this too combative for his liking and sought something more constructive. When the mediation rules were changed to allow certification of a broader group of professionals, he obtained certification as a family law mediator. He has participated in the hurricane damage mediation program originated in Dade after Hurricane Andrew. He has served as a Court appointed mediator in family law, and has mediated in Palm Beach, St. Lucie, and Charlotte counties and in the Florida Keys. He has been trained for ADA disputes and has participated in guardian ad litem training. He has served as a Board member of the Florida Association of Professional Family Law Mediators. He has not had assignments as a financial neutral but is exploring this area, and is attending collaborative law training. Not surprisingly, Gary is a people-oriented person. He started his adult career in retailing at Burdines. He has always been active in the Boy Scouts, as an Eagle Scout and a Scout leader. He loves the windjammer cruising in the Caribbean. His current hobby is genealogy, through which he has traced his own lineage, and has helped other family groups looking for their ancestry. He became so involved that his personal time was impacted, and he had to stop for a while. Here is a CPA who is obviously far more than a "bean counter"! FLAFCC is fortunate to have his talents and commitment as member.

10 David Euwema, M.S., LMHC David practices in Kissimmee. He was born in Chicago, and moved to Ft. Lauderdale at elementary school age. His family owned a luxury yacht charter business in the Bahamas, where he lived for six years. He feels this was an important part of his development since he was exposed to a variety of different cultures. He was a marine biologist, and obtained his Masters in Counseling at Nova University. He attended a seminar at University of South Florida at Tampa in the 90's, and was impressed with news of some of the efforts at a more cooperative and collaborative style of family law practice in Southwest Florida. At this same time, Judge Roger McDonald was interested in starting a Parenting Coordination program in Osceola County. He appointed David as the first PC. David found this to be the most difficult work he had ever done. Even though he had mediation training, he had not practiced as a mediator. He found himself in the scary position of dealing with belligerent parents who had been in court for anywhere from five to eleven years. To his surprise, even those long standing, seemingly intractable cases turned out to be successful! The process evolved into a larger use of the PC arbitration power. He found he could do some effective work with what seemed to be impossible cases, mainly through obtaining better communication between the parties. He has found the attorneys in Osceola and Orange Counties to be very helping and supportive of the PC work, and appreciated Judge McDonald's leadership in approaching the attorneys for their support and input before embarking on a new program. David's current practice involves about 40% PC work and about 60% counseling and evaluation services. He is finding the geriatric cases in family law as the newest trend and difficult challenge. David enjoys boating as his prime hobby. He built a 20 footer in high school and has graduated to building a 32 footer as an adult. One of the interesting things he has noted about his PC work is the importance of process. He equates this to the Paris peace talks over settling the war in Viet Nam. Getting agreement on the seating around the table took days to work out. Then getting an actual agreement could be measured in hours. He enjoys re-directing the parents from a process centered on themselves, to one of redefining their relationship as having the job of successfully raising their children. Well, there you have it! Two committed professionals in differing fields, two interesting people with very human sides. That's AFCC at it's best! Join us next month for more tales of FLAFCC! Hugh Starnes, Editor