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

The Collaborative Family Law Process


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


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

The Collaborative Family Law Process


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



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


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



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


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