Sampson Collaborative Law

Florida Collaborative Law Process Act, Section 61.55 – 61.58, Florida Statutes (2017)

PART III, CHAPTER 61, FLORIDA STATUTES
COLLABORATIVE LAW PROCESS ACT

61.55 Purpose.
61.56 Definitions.
61.57 Beginning, concluding, and terminating a collaborative law process.
61.58 Confidentiality of a collaborative law communication.

61.55 Purpose.—The purpose of this part is to create a uniform system of practice for the collaborative law process in this state. It is the policy of this state to encourage the peaceful resolution of disputes and the early resolution of pending litigation through a voluntary settlement process. The collaborative law process is a unique nonadversarial process that preserves a working relationship between the parties and reduces the emotional and financial toll of litigation.
History.—s. 4, ch. 2016-93.

61.56 Definitions.—As used in this part, the term:
(1) “Collaborative attorney” means an attorney who represents a party in a collaborative law process.
(2) “Collaborative law communication” means an oral or written statement, including a statement made in a record, or nonverbal conduct that:
(a) Is made in the conduct of or in the course of participating in, continuing, or reconvening for a collaborative law process; and
(b) Occurs after the parties sign a collaborative law participation agreement and before the collaborative law process is concluded or terminated.
(3) “Collaborative law participation agreement” means an agreement between persons to participate in a collaborative law process.
(4) “Collaborative law process” means a process intended to resolve a collaborative matter without intervention by a tribunal and in which persons sign a collaborative law participation agreement and are represented by collaborative attorneys.
(5) “Collaborative matter” means a dispute, a transaction, a claim, a problem, or an issue for resolution, including a dispute, a claim, or an issue in a proceeding which is described in a collaborative law participation agreement and arises under chapter 61 or chapter 742, including, but not limited to:
(a) Marriage, divorce, dissolution, annulment, and marital property distribution.
(b) Child custody, visitation, parenting plan, and parenting time.
(c) Alimony, maintenance, and child support.
(d) Parental relocation with a child.
(e) Parentage and paternity.
(f) Premarital, marital, and postmarital agreements.
(6) “Law firm” means:
(a) One or more attorneys who practice law in a partnership, professional corporation, sole proprietorship, limited liability company, or association; or
(b) One or more attorneys employed in a legal services organization, the legal department of a corporation or other organization, or the legal department of a governmental entity, subdivision, agency, or instrumentality.
(7) “Nonparty participant” means a person, other than a party and the party’s collaborative attorney, who participates in a collaborative law process.
(8) “Party” means a person who signs a collaborative law participation agreement and whose consent is necessary to resolve a collaborative matter.
(9) “Person” means an individual; a corporation; a business trust; an estate; a trust; a partnership; a limited liability company; an association; a joint venture; a public corporation; a government or governmental subdivision, agency, or instrumentality; or any other legal or commercial entity.
(10) “Proceeding” means a judicial, an administrative, an arbitral, or any other adjudicative process before a tribunal, including related prehearing and posthearing motions, conferences, and discovery.
(11) “Prospective party” means a person who discusses with a prospective collaborative attorney the possibility of signing a collaborative law participation agreement.
(12) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(13) “Related to a collaborative matter” means involving the same parties, transaction or occurrence, nucleus of operative fact, dispute, claim, or issue as the collaborative matter.
(14) “Sign” means, with present intent to authenticate or adopt a record, to:
(a) Execute or adopt a tangible symbol; or
(b) Attach to or logically associate with the record an electronic symbol, sound, or process.
(15) “Tribunal” means a court, an arbitrator, an administrative agency, or other body acting in an adjudicative capacity which, after presentation of evidence or legal argument, has jurisdiction to render a decision affecting a party’s interests in a matter.
History.—s. 5, ch. 2016-93.

61.57 Beginning, concluding, and terminating a collaborative law process.—
(1) The collaborative law process begins, regardless of whether a legal proceeding is pending, when the parties enter into a collaborative law participation agreement.
(2) A tribunal may not order a party to participate in a collaborative law process over that party’s objection.
(3) A collaborative law process is concluded by any of the following:
(a) Resolution of a collaborative matter as evidenced by a signed record;
(b) Resolution of a part of the collaborative matter, evidenced by a signed record, in which the parties agree that the remaining parts of the collaborative matter will not be resolved in the collaborative law process; or
(c) Termination of the collaborative law process.
(4) A collaborative law process terminates when a party:
(a) Gives notice to the other parties in a record that the collaborative law process is concluded;
(b) Begins a proceeding related to a collaborative matter without the consent of all parties;
(c) Initiates a pleading, a motion, an order to show cause, or a request for a conference with a tribunal in a pending proceeding related to a collaborative matter;
(d) Requests that the proceeding be put on the tribunal’s active calendar in a pending proceeding related to a collaborative matter;
(e) Takes similar action requiring notice to be sent to the parties in a pending proceeding related to a collaborative matter; or
(f) Discharges a collaborative attorney or a collaborative attorney withdraws from further representation of a party, except as otherwise provided in subsection (7).
(5) A party’s collaborative attorney shall give prompt notice to all other parties in a record of a discharge or withdrawal.
(6) A party may terminate a collaborative law process with or without cause.
(7) Notwithstanding the discharge or withdrawal of a collaborative attorney, the collaborative law process continues if, not later than 30 days after the date that the notice of the discharge or withdrawal of a collaborative attorney required by subsection (5) is sent to the parties:
(a) The unrepresented party engages a successor collaborative attorney;
(b) The parties consent to continue the collaborative law process by reaffirming the collaborative law participation agreement in a signed record;
(c) The collaborative law participation agreement is amended to identify the successor collaborative attorney in a signed record; and
(d) The successor collaborative attorney confirms his or her representation of a party in the collaborative law participation agreement in a signed record.
(8) A collaborative law process does not conclude if, with the consent of the parties, a party requests a tribunal to approve a resolution of a collaborative matter or any part thereof as evidenced by a signed record.
(9) A collaborative law participation agreement may provide additional methods for concluding a collaborative law process.
History.—s. 6, ch. 2016-93.

61.58 Confidentiality of a collaborative law communication.—Except as provided in this section, a collaborative law communication is confidential to the extent agreed by the parties in a signed record or as otherwise provided by law.
(1) PRIVILEGE AGAINST DISCLOSURE FOR COLLABORATIVE LAW COMMUNICATION; ADMISSIBILITY; DISCOVERY.—
(a) Subject to subsections (2) and (3), a collaborative law communication is privileged as provided under paragraph (b), is not subject to discovery, and is not admissible into evidence.
(b) In a proceeding, the following privileges apply:
1. A party may refuse to disclose, and may prevent another person from disclosing, a collaborative law communication.
2. A nonparty participant may refuse to disclose, and may prevent another person from disclosing, a collaborative law communication of a nonparty participant.
(c) Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely because of its disclosure or use in a collaborative law process.
(2) WAIVER AND PRECLUSION OF PRIVILEGE.—
(a) A privilege under subsection (1) may be waived orally or in a record during a proceeding if it is expressly waived by all parties and, in the case of the privilege of a nonparty participant, if it is expressly waived by the nonparty participant.
(b) A person who makes a disclosure or representation about a collaborative law communication that prejudices another person in a proceeding may not assert a privilege under subsection (1). This preclusion applies only to the extent necessary for the person prejudiced to respond to the disclosure or representation.
(3) LIMITS OF PRIVILEGE.—
(a) A privilege under subsection (1) does not apply to a collaborative law communication that is:
1. Available to the public under chapter 119 or made during a session of a collaborative law process that is open, or is required by law to be open, to the public;
2. A threat, or statement of a plan, to inflict bodily injury or commit a crime of violence;
3. Intentionally used to plan a crime, commit or attempt to commit a crime, or conceal an ongoing crime or ongoing criminal activity; or
4. In an agreement resulting from the collaborative law process, as evidenced by a record signed by all parties to the agreement.
(b) The privilege under subsection (1) for a collaborative law communication does not apply to the extent that such collaborative law communication is:
1. Sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice arising from or relating to a collaborative law process; or
2. Sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation of a child or an adult unless the Department of Children and Families is a party to or otherwise participates in the process.
(c) A privilege under subsection (1) does not apply if a tribunal finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, the need for the evidence substantially outweighs the interest in protecting confidentiality, and the collaborative law communication is sought or offered in:
1. A proceeding involving a felony; or
2. A proceeding seeking rescission or reformation of a contract arising out of the collaborative law process or in which a defense is asserted to avoid liability on the contract.
(d) If a collaborative law communication is subject to an exception under paragraph (b) or paragraph (c), only the part of the collaborative law communication necessary for the application of the exception may be disclosed or admitted.
(e) Disclosure or admission of evidence excepted from the privilege under paragraph (b) or paragraph (c) does not make the evidence or any other collaborative law communication discoverable or admissible for any other purpose.
(f) The privilege under subsection (1) does not apply if the parties agree in advance in a signed record, or if a record of a proceeding reflects agreement by the parties, that all or part of a collaborative law process is not privileged. This paragraph does not apply to a collaborative law communication made by a person who did not receive actual notice of the collaborative law participation agreement before the communication was made.
History.—s. 7, ch. 2016-93.