Florida Family Lawyer Blog

This holiday season and recent events effectively and painfully lend some perspective to the kinds of conflicts and disagreements that arise in many other areas of life, including family law litigation and other arenas as well.

We see some of a shift I believe in an area of disagreement like the "fiscal cliff" negotiations, that had been prominent in the political and financial life of the country recently - there seems to be less of a focus now on arguing or posturing and more on attempting to arrive at an agreement. That may have been something that was going to happen anyway, but the tone or approaches do seem different now (although in the one day since first writing this post, it appears that Washington may be returning to "normal").

There also can be a shift in the approach or mind-set in divorce and other family law litigation, or really in just about any area where there is a choice between conflict or seeking to arrive at a solution. People can seek to work things out or seek to argue. There are obviously times when a threat or force needs to be met with an equivalent response - in the context of family law litigation sometimes there are apparent needs to push back, but even then there are sometimes options other than meeting a highly adversarial position with a similarly highly adversarial response.

In family law cases there can be a clear shift from an approach which seeks to litigate and focus on court procedures, to an orientation of attempting to work things out between the parties. People don't always agree, and there will be disagreements, but there can nonetheless be a goal or habit of attempting to work cooperatively. It's a little bit of a reach as an analogy, but I recall going through physical therapy for a back injury years ago, and one of the things the therapist focused on were exercises to change my posture, basically to get the muscles used to the habit of standing/sitting with better posture. I believe it's possible for people to develop different habits for addressing and resolving disagreements.

For disagreements that arise during the holidays, for example regarding time-sharing, parties can attempt where possible to work things out. Sometimes that's not possible, or the other parent is dangerous or not the type of person where compromise and agreement is possible, but many times a resolution is possible; or people can decide to work things out temporarily now, and argue later.

Another process, which I don't think is quite as well known at this point as mediation, is Collaborative Family Law. It's basically a process where both sides and their attorneys agree and commit to resolving the case outside of court. Everyone signs an agreement that if the case ends up contested in court, neither of the attorneys who participated in the collaborative family process is permitted to represent a party in court.Collaborative Family Law is usually thought of as a approach where everyone tries to get along, and usually happens as a series of meeting with all the parties, attorneys and any experts present, where the parties "collaborate" and try to resolve the case.

I believe it's possible for it to work also in situations where there is high conflict, it the parties make some basic commitments, at least in their own minds. Even if the parties hate each other, and have no interest in sitting in the same room, it's still possible for everyone to commit to resolving the case outside of court - i.e. deciding we're not going to file a court case, we're not going to go through all the court processes, hearings, "discovery" etc. and one way or another, we are going to resolve the case. In addition, instead of handling the collaborative family law case through meetings with everyone present, the case can proceed to resolution through more informal negotiation, e.g. between the attorneys. You'll find that attorneys in a collaborative family law case often have a different approach or orientation, than even the same attorneys do when handling a litigated, adversarial case. In a litigated case, attorneys can be cordial, even friendly and get along, but the litigation process involves a potential eventual trial, and the case has to be prepared with that in mind - i.e. an adversary process, versus the approach or orientation in a collaborative family law case where the idea is to work together.

For these alternative dispute resolution approaches to work, either mediation or collaborative family law, both sides need to be reasonable - at least in terms of not relentlessly, without end, seeking a settlement that is simply not reasonable. Sometimes seeking an "unreasonable" settlement will work for you - e.g. try to go to mediation to get a settlement that there is no way you could get in court, but if the other party is represented by a competent attorney or is aware of what Florida law provides, it's likely to result in no settlement. Although some mediators may not want to acknowledge this, there are almost certainly cases where one spouse or the other wants to get the case into "pro se" mediation, with the primary goal of getting a settlement that isn't "fair" and won't fly if their spouse gets legal counsel. Similarly, there are probably cases where one spouse or the other is interested in collaborative family law because they seek to drag out the process or get a resolution they couldn't get in court. On the flip side, there are probably more cases where the parties could settle through mediation or collaborative family law, without the fight and with less expense than they get if they file suit and contest the case in court.

This has been a bit of a round about discussion in the two parts of this post, but the point I'm trying to make is that you both don't have to be willing to sit down and hold hands to be able to take advantage of "alternative dispute resolution". It takes more I believe a commitment to resolve the case outside of court, with the help of a professional or professionals, who can perhaps help to lead you to a settlement. I've written some here about the differences between the different approaches to handling a family law case -- mediation, collaborative family law, and traditional divorce litigation, and you can look here (mediation) and here (collaborative family law) for more information about that, as well as the drawbacks or potential disadvantages of the different approaches.

More and more clients and divorce attorneys in Broward, Dade and other parts of Florida are moving towards trying to resolve family law cases outside of court. It's always been the case that most divorces and other family law cases are settled outside of court, before trial, but something that is become more popular these days, as people look for less adversarial and less expense ways to handle divorces, is something often referred to as "alternative dispute resolution", including Mediation and Collaborative Family Law. Many people are pretty familiar with mediation, and there is an earlier post on the blog discussing mediation. You can find more information here about Collaborative Family Law.

The issue I wanted to address in this post is can these alternative, or potentially more friendly approaches work where the parties don't like each other, or where there are still extremely strong feelings of anger or resentment? You don't necessarily quickly get over being seriously wronged by another person - especially a spouse or other person who was close to you. So the question is, while mediation or a collaborative process can work when people basically get along and agree about how they want to settle things, can it work when that is not the case at all? I believe the answer to that question - for a few reasons, is yes.

First, you can hate someone - be incredibly angry at them, but still want to get your divorce or other case resolved, done, so you don't have to live with it for a year or more, and spend large amounts of money on attorneys. There are cases of course, where one side or the other wants to litigate and make the other side suffer. Perhaps that is an appropriate course of action sometimes - I think that's more a decision each person has to make for themselves or with a counselor they're working with, etc. There are limits to what's permitted in the legal system, however - parties aren't permitted to take positions that are without any support, conflict between parents can have a negative effect on children, and there is the question of how much satisfaction a person can really get from fighting through the court system, or if that is a "curative" process.

Second, it is sometimes possible for you to hate each other, be incredibly angry, and still get through a mediation, for example, and come to an agreement. Sometimes it will involve one or both parties being willing to stomach being in the same building as the other party, or one or both parties, as applicable, making a decision to manage their own behavior, at least enough that a mediation can be accomplished. One good thing is that you can mediate a case, and never or almost never see each other. The mediation can be accomplished entirely through separate meetings between each party and the mediator, called "caucuses". One thing that has to be screened for is safety and domestic violence, and mediation isn't possible or appropriate in all cases. Although Collaborative Family Law cases usually involve a series of meetings among the parties, attorneys and any experts involved, it could be done through more informal negotiation through the attorneys.

For mediating a case, one thing I believe helps is for both sides either to be sufficiently informed about Florida law, at least enough to know what they want to settle for - e.g. how much they want for alimony, not be concerned with what their rights are, or be comfortable making a decision based on the general information a mediator can give them. A mediator can only go so far in giving the parties general information about Florida law. Using alimony again as an example, a mediator could tell you that alimony is based on need, ability to pay and the other factors listed in Florida's alimony statute, including the marital standard of living, but most likely will not tell you what's a reasonable or likely amount or range for alimony in your particular case. Each party can hire an attorney and go to the mediation with their own attorney, or go to the mediation themselves, but consult with an attorney before going, and after the mediation also before signing an agreement. Sometimes spouses will want to keep attorneys entirely out of the mix.

(Continued in Part II)