COLLABORATIVE PRACTICE: THE FUTURE IS NOW!

Transcription

1 INAUGURAL COLLABORATIVE FAMILY LAW CONFERENCE COLLABORATIVE PRACTICE: THE FUTURE IS NOW! May 17 18, 2013 Grand Hyatt Tampa Bay, Tampa, Florida Collaborative Divorce Professionals of Gainesville University of Florida Fredrik G. Levin College of Law

2 PRESENTERS BIOGRAPHIES: Forrest "Woody" Mosten, Esq. is a collaborative attorney (Certified Family Law Specialist) and mediator in Los Angeles who handles matters involving substantial assets and high conflict. He is a full time peacemaker and never goes to court on any case. He is in constant demand as a keynote speaker for Collaborative Law Conferences and trains Collaborative Practice Groups worldwide in creative convening and agreement building strategies, ethics, format design, current hot issues and future trends, and how to build a profitable peacemaking practice and most recently, has offered a Master Class for Collaborative Professionals nationwide with Pauline Tesler. He teaches Collaborative Law in law schools and is the ABA Chair on integrating Collaborative Law into law school curriculum. Woody is the author of four books, Collaborative Divorce Handbook (2009), Mediation Career Guide (2001), Unbundling Legal Services (2000), and Complete Guide to Mediation (1997) and numerous articles on Collaborative Law, Mediation, and Unbundling. He was the Guest Editor of Family Court Review s Special Issue on Collaborative Practice (April 2011) in which he authored an article on the future of Collaborative Practice. Woody has received numerous awards including the ABA Lawyer as Problem Solver Award and the ABA Lifetime Career Award for his contributions to unbundling, legal access and Collaborative law as well as Peacemaker of the Year Award from the Southern California Mediation Association and the Conflict Prevention Award from the LA Bar Association. Woody is a member of the faculty at UCLA School of Law and has taught at many law schools throughout the world. He can be reached at [email protected]. Wendy Aikin, Esq. has over 30 years experience as an attorney and a mediator working with families throughout Central Florida representing clients in actions involving dissolution of marriage, paternity, modification, prenuptial agreements, child support, alimony, timesharing, and domestic partnerships in the collaborative law and traditional litigation models. She received her undergraduate as well as her J.D. from the University of Florida. Wendy is an even-tempered, calming influence in difficult family law cases. She does not shy away from complex legal problems with complicated family dynamics and has a unique ability to see the big picture and suggest creative solutions. She has extensive professional contacts in the community which allow her to access legal, financial and psychological resources for the clients benefit. Her collaborative law and mediation experience help her guide clients respectfully to solutions that preserve the family relationship and minimize damage to children. As a wife, mother, stepmother and grandmother, she brings real life experience to her clients. Wendy has been an AV rated attorney since 1989, and has received the Super Lawyer designation each year since In 2010 she was given the honor of being selected for the Best Lawyers in America. Scott F. Barnett, Esq., LLM is a Certified Divorce Financial Analyst (CDFA ) seasoned professional with 35 years of experience in all aspects of tax, estate and asset. A graduate of the University of South Florida, he received his J.D. from the University of Florida College of Law. He also received his LL.M (Taxation) New York University School of Law. Admitted into The Florida Bar in He is an expert in estate and asset protection planning for individuals, families and family owned businesses, an expert in closely held business planning, including technology transfer, business start-up, corporate governance and succession planning. He is often a guest lecturer at USF Center for Entrepreneurship regarding Business Start Up ( Business Start-Up Punchlist) and governance. His honors include rated AV, Bar Register of Preeminent Lawyers, Martindale-Hubbell Law Directory & Activities, Advisory Board, USF Center for Entrepreneurship and Past President, USF National Alumni Association. He is an active member of the International Academy of Collaborative Professionals, Collaborative Family Law Group of Central Florida and Collaborative Divorce Institute of Tampa Bay. He is part of the Interdisciplinary Team Model of Collaborative Practice Roadmaps for Resolution. He has written, Reduce Risks: Add an Income Rider, Life Insurance Selling Magazine (June 1, 2011) and Family Limited Partnership Planning, Small Business Planning, Chapter 5. Published by the Florida Bar and distributed by Lexis-Nexis (2005). From 2006 present he is an Assistant Professor at the University of South Florida College of Medicine within the Department of Psychiatry & Behavioral Neuroscience. His presentations include: Guest Lecturer to USF Center for Entrepreneurship Master of Entrepreneurship Class; Class on New Venture Formation; Class on Strategic Assessment; Fundamentals of Venture Capital and Private Equity; Grand Rounds to Department of Psychiatry and Behavioral Medicine, USF Health; Mental Health as a Social Movement October 18, 2007; Grand Rounds to Department of Psychiatry and Behavioral Medicine, USF Health. He is also President/Executive Director of the Mental Health America of Greater Tampa Bay, INC.

3 Tom Behan, CPA, CVA, ABV, CFE has been a practicing in public accounting for more than thirty-six (36) years. He started his public accounting career in New Jersey with Ernst & Ernst. He started his own firm in May of 1986 in Orlando. His experience in public accounting is diversified. He has handled engagements from small businesses to multinational publicly held corporations including Fortune 500 in many different industries. Mr. Behan has experience in litigation support including: business valuations contract disputes fraud in connection with dissolution of marriages bankruptcy fraud divorce accounting economic crime investigation securities lawsuits CPA firm defense involving violations of GAAS and GAAP. Before entering public accounting, Mr. Behan was an assistant budget director for a county government in New Jersey. He graduated with honors from Rider College in Lawrenceville, New Jersey in June He served in the New Jersey Air National Guard as an aircraft mechanic from June 1970 to June 1976 when he was honorably discharged.. Behan has been a lecturer for the Florida Institute of Certified Public Accountants and the Family Law Section of the Florida Bar. He holds CVA, CFE, and ABV certifications. Mr. Behan is a member of the American Institute of Certified Public Accountants, the Florida Institute of CPA's, the National Association of Certified Valuation Analysts, and the Association of Certified Fraud Examiners. Steven Berzner, Esq. is a Family Law attorney and mediator; member of the Board of Directors of the Collaborative Family Lawyers of South Florida; Member of the Legislation Committee and the Executive Council of The Florida Bar Family Law Section; Co-Vice-Chair of the mediation and Collaborative Committee, member of the Support Issues Committee, Chair of the After-born Children Subcommittee, member of the Split Parenting Subcommittee, member of the Broward County Bar. Honorable Alice Blackwell a Circuit Judge in the Ninth Judicial Circuit of Florida. She received her B.A. from Furman University and J.D. from the University of South Carolina College of Law. She has an extensive history in private practice as well as service to the legal community as a judge. Highlights are as follows: Private practice ( ); Partner, Broad & Cassel, P.A., Orlando, Florida ( ); Circuit Judge Ninth Judicial Circuit (1991-present); Administrative Judge, Civil Division of the Ninth Judicial Circuit ( ); Administrative Judge, Domestic Division of the Ninth JudiciaI Circuit (2002, ); Supreme Court Judicial Branch Governance Study Group, Member (2009-present); Florida Conference of Circuit Judges, Executive Committee (2004-present), Chair (June ); Chair, Supreme Court Commission on Trial Court Performance and,accountability ( ); Association of Family & Conciliation Courts, Board of Directors (2004-present); Central Florida Family Law lnns of Court, Member (2005-present), President (2005), Executive Committee( ); American lnns of Court Member ( ), President ( ); Orange County Domestic Violence Task Force award (2009); The James G. Glazebrook Memorial Bar Service Award (2009); Outstanding Leadership Award, Domestic Violence Task Force of Orange County (2002, 2009); Law Enforcement Commendation Medal (2000); Trial Judge of the Year, American Board of Trial Advocates, Central Florida Chapter {1998); Legal Aid Society Pro Bono Awards of Excellence (1990,1997); Orange County Bar Association Outstanding Committee Chair, Professionalism Committee (1995); Faculty, Parenting Coordination Training (2006, ); Faculty, New Judges College (2007, 2010); Adjunct, Barry University School of Law (2008-present); Faculty, Advanced Judicial College ( , ,2004); Association of Family and Conciliation Courts, Co-presenter, Ethical Practice for Parenting Coordinators (2007); Co-Author, Program profile: The Court Care Center for Divorcing Families. Family Court Review, (2004); Judge Blackwell is a frequent lecturer for The Florida Bar Family Law Section, The Orange County Bar Association and other organizations on issues of family law and domestic violence. Lori Caldwell-Carr, Esq. is a graduate of the University of Florida (B.S. in Journalism) and Barry University College of Law (JD). Ms. Caldwell-Carr has spent the last seven years practicing exclusively family law and founded lnfocus Family Law Firm, PL in Maitland, Florida to guide clients through life's transitions. Ms. Caldwell-Carr is a Lone Star trained collaborative professional who is actively involved in the collaborative family law community through her membership locally in The Collaborative Family Law Group of Central Florida; statewide through the Florida Bar Family Law Section Mediation and Collaborative Committee; and Nationally and lnternationally through the lnternational Academy of Collaborative Professionals. Lori has represented family law clients in numerous Collaborative cases. She is also an active speaker on the topic of Collaborative Law.

4 Debra K. Carter, Ph.D. is a clinical and forensic psychologist, a Certified Family Law Mediator, and Qualified Parenting Coordinator. She is also the Co-Founder of the National Cooperative Parenting Center (NCPC) which offers a wide array of services to the Mental Health and Legal Communities and provides basic and advanced training on family law matters in many jurisdictions across North America and Europe. Dr. Carter is a frequent expert to the court on child development and parenting after divorce and is the author of Parenting Coordination: A Practical Guide for Family Law Professionals (2011) and co-author of Empirically Based Parenting Plans: What Professionals Need to Know (2010) in addition to numerous book chapters and articles on family law matters. Catherine Conner, Esq. is the current President of the International Academy of Collaborative Professionals. She is a collaborative attorney and mediator from Santa Rosa, California and has also been a collaborative and mediation trainer with the Center for Understanding in Conflict since She authored Collaborative Family Law Practice Materials with Steven Neustadter and Margaret Anderson. She and her Sonoma County colleagues created a Collaborative Practice Center six years ago at which 18 collaborative professionals work on a part or full time basis. Today, Catherine will be presenting about the Role of the Law in Collaborative Practice, a topic that can be both perplexing and intriguing for collaborative practitioners. Deborah. O. Day, Psy.D. received her Doctorate in Clinical Psychology from Florida Institute of Technology and is a Licensed Psychologist, Licensed Mental Health Counselor, and Certified Family Mediator. Dr. Day, Licensed Psychologist, is in private practice with Psychological Affiliates, Inc., of Winter Park, Florida. Her practice specialties include forensic psychology including divorce/parenting plan evaluations, collaborative law practice, Factitious Disorders (Munchausen By Proxy), child abuse, and criminal matters. She has testified regarding numerous psychological issues and presents professional workshops and seminars throughout the country. Dr. Day is the co-editor of the book, Munchausen By Proxy Syndrome: Misunderstood Child Abuse. Her most recent publications, Munchausen by Proxy Syndrome and Child Custody Evaluations are Essential appear in the Journal of Forensic Psychology Practice. She completed a three-year appointment to the Judicial Nominating Commission for the Florida Supreme Court and seven-year appointment with the Mediation Ethics Advisory Commission. She is active in the Florida Bar's Family Law Section, previously Vice- Chair of the Domestic Violence Committee and Co-chair of the Litigation Support Committee. She has been the Special Advisor to the Section Chair on Children s Issues, Domestic Violence, and Legislation. She is currently Co-Vice Chair of the Children s Issues Committee and returning member of CLE. Dr. Day is a member of the Association of Family and Conciliation Courts, the Florida Psychological Association, and an affiliate member of The Florida Bar. Dr. Day is the past President of the Florida Psychological Association, Central Florida Chapter and current Ethics Chair. She is a founding board member of the Central Florida Collaborative Law Group. She completed two terms as a founding board member of the Florida Association of Family and Conciliation Court (FLAFCC). In 2010, Dr. Day received the Family Law Section Making a Difference award, recognizing her commitment to volunteerism during her career. In 2011, she was honored by the Family Law Section of the Florida Bar with the Visionary Award, recognizing her long-standing commitment to Children and Family in the State of Florida. Dr. Day has extensive television and news experience. She has provided commentary for Court TV, American Health Network, CNN, and all the major network news broadcasts. Craig S. Fabrikant, Ph.D is a licensed psychologist in Florida, as well as in New Jersey and New York. He received his doctorate in Clinical Psychology from the Florida Institute of Technology and has been in private practice for over 30 years. His practice experience has been with children, adolescents, and adults. He also provides marital/relationship therapy, as well as being a Collaborative Mental Health Professional and Supreme Court Certified Family Mediator.. Dr. Fabrikant is also certified in Florida as a Parent Coordinator. Currently, Dr. Fabrikant is also on the Medical Staff of three hospitals, including Aventura Hospital and Medical Center (Aventura), University Hospital and Medical Center (Tamarac), and Memorial Hospital and Medical Center (Hollywood). Dr. Fabrikant has written numerous professional articles. He also has made many international, national, state, and local presentations. Over the past 25 years Dr. Fabrikant has been a featured guest on national and local television and radios shows. These have included Good Morning America, The Today Show, American HQ (Fox News), Out of the Lines (ESPN), ABC National News, CBS National News and others. He has also been referred to and quoted in many newspapers, including the New York Times, Wall Street Journal, New York Post, and Daily News, in addition to hundreds of other national and international newspapers. ([email protected] /

5 Sheldon E. Finman, Esq. is a Florida Bar Board-Certified Marital and Family Law Attorney (1985) specializing in complex financial and parenting issues. His primary focus over the past 42 years of practice in representing clients has been to help diffuse high emotions in order to allow clear thinking and more potential for settlement. Shelly is also a Florida Supreme Court Certified Family Law mediator, the first in Lee County (1983). Throughout his career, Shelly has received many awards and recognition for his dedication to helping families during divorce. He has given countless presentations and trainings on subjects such as collaborative law, cooperative divorce and skills training for family law professionals throughout Florida, the United States, and Canada. Shelly not only helps clients and families as they transition from marriage, but remains active in various significant roles within the 20 th Judicial Circuit and Florida, dedicated to improving the family court system. Jeremy D. Gaies, Psy.D. is a licensed psychologist, certified family mediator, certified guardian ad litem, parenting coordinator, and collaborative facilitator in private practice. Dr. Gaies graduated from Brown University with a degree in psychology and completed his doctoral studies in clinical psychology at Rutgers University. After serving as a clinical assistant professor at the University of South Florida, Dr. Gaies worked as a staff psychologist and as a clinical manager for a large managed care organization. He moved to full-time private practice in 1998, providing a full range of psychological services to children, adolescents, and adults, with a focus on couples and families. For several years, Dr. Gaies has devoted his practice to the area of divorce management, especially providing peacemaking interventions to high-conflict families. Dr. Gaies practices on a full-time basis in two primary realms: parenting coordination services and collaborative divorce. As a collaborative facilitator (neutral mental health professional) in family law cases, Dr. Gaies coordinates the collaborative team in moving divorcing spouses to a mutually-agreeable final agreement for the benefit of both the parents and the children. Dr. Gaies is also actively involved in the Tampa Bay Collaborative Divorce Group, a professional organization whose mission is to foster the development of collaborative divorce throughout the Tampa Bay area and beyond. Paul Garcia, CPA has over 30 years experience in all aspects of accounting, tax, consulting services, and litigation support. Paul is highly experienced in the taxation of closely held businesses and individuals as well as taxation of foreign corporations and non-resident aliens. Paul s civil litigation experience includes settlement negotiations, business valuations, shareholder/partner disputes, and the sale/purchase of business enterprises. Paul specializes in forensic and valuation matters for matrimonial dissolution matters. He works in collaboration with attorneys to evaluate income and expenses; asset and liability analysis; equitable property distributions; alimony and child support calculations; representation in mediations, court hearings, and trials. Paul also serves as a neutral forensic in matrimonial dispute cases working jointly with both husband and wife. Paul has been civil court-appointed expert in Miami-Dade and Broward County, Florida. Nancy Harris, Esq. For more than 20 years, Nancy Harris has practiced exclusively in the area of marital and family law. Her firm, Harris and Hunt, P.A., focuses on complex family law matters using the collaborative divorce method as well as a constructive traditional approach to resolving family law matters. For many years, Ms. Harris has been recognized as one of Florida's outstanding lawyers in Florida Super Lawyers, Florida Trend s Legal Elite and Tampa Bay Magazine s Top Lawyers. She is listed in the Bar Register of Preeminent Lawyers, a compilation of select attorneys who have consistently earned an AV-rating, the highest score awarded by Martindale-Hubbell. Ms. Harris authored a chapter on Collaborative Divorce in West Publishing Corporation s Florida Family Law, 2011, 2012 ed. (Vol. 23, Florida Practice Series). Ms. Harris is a founding member, past Co-Chair and current member of the Executive Committee of the Tampa Bay Collaborative Divorce Group; Vice President of the Collaborative Family Law Council of Florida; past member of the Florida Bar Family Law Section Executive Committee; past Chair and current member of the Executive Committee of Hillsborough County s Marital and Family Law section; current member of the Global Collaborative Law Council; Master of the Tampa Family Law Inns of Court; current member of the Association of Family and Conciliation Courts and of the Hillsborough Association of Women Lawyers. Recently, she presented at the 31 st Annual Meeting of the American Academy of Matrimonial Lawyers and the 48 th Annual Conference of the Association of Family and Conciliation Courts; Ms. Harris received the Hillsborough County Family Law Professionalism Award, selected by her attorney peers as having exemplified the highest standards of ethics and professionalism in the practice of family law. Ms. Harris currently serves on the Academy Prep Center Board of Trustees; is a past member of the United Way Board of Trustees; participates in the Lawyers for Literacy program; is a current member of Le Tastevin and Les Chaines des Rotisseurs; summitted Mt. Kilimanjaro, Tanzania in September, 2010 and completed the Tour of Mont Blanc, France in June, 2011.

6 Randy Heller, Ph. D. received her doctorate in Family Therapy from Nova Southeastern University. She has held multiple positions as an Educator, Exceptional Student Specialist, and Family Counselor for The Broward County School Board beginning in She is now a Licensed Mental Health Counselor, Licensed Marriage and Family Therapist, Certified Supreme Court Family Mediator, Qualified Parenting Coordinator, and Certified Hypnotherapist, and Clinical Director of The Family Network, Center for Positive Growth and Change, established in Heller has had highly successful experience working with all aged individuals, parents, couples, step-families, children of divorce, and students with educational, motivational, and behavioral challenges; facilitating change in their behavior, interactions, and relationships. She is a clinical member and approved supervisor of the American Association of Marriage and Family Therapists. Dr. Heller has also received specialized training in Collaborative Family Law. She is a member of the International Academy of Collaborative Professionals, and the Association of Family and Conciliation Courts. Heller serves as a Board member of The Collaborative Family Law Council of Florida, The Collaborative Family Law Professionals of South Florida, and is an active member on the Research Committee of the IACP. Dr. Heller has researched and published her doctoral dissertation on Competency and the Role of the Mental Health Counselor in the Collaborative Family Law. She has also published an article on this topic in the Collaborative Review Research Edition and a book chapter as well. As a trained Parenting Coordinator and Neutral facilitator in the Collaborative Process, Randy will also work with separated and divorced parents to assist them in developing an effective plan for sharing and co-parenting their children while learning to restructure their families in an effective way. John Fraser Himes, Esq. is a recognized specialist in marital and family law. Mr. Himes has been continuously Board Certified by The Florida Bar as an expert in divorce practice since Mr. Himes primarily represents high wealth individuals and has done so in many jurisdictions of Florida and around the country. His clients have included entrepreneurs, business owners, professional athletes and sports team owners, doctors, lawyers, accountants, and professionals from other fields and their spouses. He handles divorce cases involving complex issues and large marital estates with tax, property distribution, valuation, marital misconduct, spousal support, alimony, and child support, as well as contested custody and visitation issues. Mr. Himes prepares and has prepared numerous complex premarital and postnuptual agreements involving significant wealth. He is trained in both mediation ad collaborative divorce law, and he encourages the use of alternative dispute resolution methods to minimize costs and emotional fallout in resolving is divorce cases. He is an experienced marital and family law trial lawyer who has litigated extensively in many jurisdictions in Florida including the Tampa Bay area, Miami, West Palm Beach, Fort Lauderdale, Orlando, and Jacksonville. Mr. Himes chaired the Family law Rules Committee of The Florida Bar ( ). He has served on the Executive council of The Florida Bar Family Law Section and is a member of the Family Law Sections of the Florida Bar, American Bar Association and also the Hillsborough County Bar Association which he served as President. Mr. Himes has written published articles and lectured on a variety of family law topics for The Florida Bar Continuing Education seminars and other professional education groups. He recently was named Chair of a newly formed Collaborative Law Section of the HCBA. Mr. Himes received B.A. in 1967 from Vanderbilt University and his J.D. in 1971 from the University of Florida Levin College of Law. He attended international law classes at the University of Exeter, Devon, England in 1969, and is a graduate of Phillips Academy, Andover, Massachusetts. Mr. Himes holds the highest peer review rating AV from Martindale Hubbell and has been selected to be included in The Best Lawyers of America (Family Law), Super Lawyers Magazine-Family Law, and Who s Who in American Law-Marquis (Family Law), and he is included in The Bar Register of Preeminent Lawyers. Barbara E. Kelly, Ph.D. is a licensed psychologist and certified family mediator in private practice in Maitland, Florida. She earned her Ph.D. in counseling psychology in 1997 from the University of Miami and completed her training as a family mediator in Dr. Kelly provides clinical and forensic psychological services for children, adolescents and adults including Collaborative Family Practice, Psychotherapy, Parenting Coordination, Family Mediation, Expert Testimony, Psychological Evaluations and Litigation Consultation. Her areas of specialty include child development, child abuse, mood disorders, acute stress, marital/relationship issues, divorce and co-parenting. Dr. Kelly is trained in the interdisciplinary model of collaborative family law and functions as a neutral coach in collaborative cases. Dr. Kelly is currently a board member for the International Academy of Collaborative Professionals (IACP) and for the Collaborative Family Law Group of Central Florida. She is a past-president of the Central Chapter of the Florida Psychological Association. Her professional memberships include the American Psychological Association (APA), the Association of Family and Conciliation Courts (AFCC), and the Florida Academy of Professional Mediators.

7 She is an associate member of the American Bar Association Family Law Section and of the Florida Bar Association Family Law Section. She is a volunteer guardian ad Litem with the Seminole County Guardian Ad Litem program and provides training for volunteer guardians. Mike Lewis, CPA, ABV, CFF, CVA is a Certified Public Accountant and has practiced in the State of Florida for 30 years after graduating from the University of Florida. For the past twenty years, Mike has emphasized litigation support and business valuation in his personal practice. He is a Managing Partner in Lewis, Birch & Ricardo, CPA s, a sixty person Firm with offices in Tampa and Clearwater. Additionally, he directs the Litigation Support division, specializing in family law and business valuation litigation. His trial experience includes over 250 qualifications as an expert in most Central Florida counties. Federal Court experience includes Florida and California districts. Mike s professional achievements include accreditation in Business Valuation and Financial Forensics by the American Institute of Certified Public Accountants and as a Certified Valuation Analyst by the National Association of Certified Valuation Analysts. He is also a Registered Investment Advisor Series 65. Professional memberships include American Institute of Certified Public Accountants, Florida Institute of Certified Public Accountants, Institute of Business Appraisers, National Association of Certified Valuation Analysts and Litigation Support Accountants of Tampa Bay. He is a board member of The Tampa Bay Collaborative Divorce Group. Mike regularly lectures at various conferences including the University of Florida Accounting Conference, Judicial Conferences and various Florida Bar Seminars. Civic activities include Kiwanis President, Chairman of a major hospital board, member of the Florida Bar Grievance Committee and various officer positions with numerous local charity boards. Brenda London, Esq. has been in the private practice of law in Florida for over 23 years. She received both her undergraduate degree and her law degree from the University of Florida. Brenda's professional focus is Family Law including divorce, custody/time-sharing, child support, paternity, alimony/spousal support, modifications, grandparents' rights, marital settlement agreements, domestic partnership agreements, relocation, domestic violence, and Guardian Ad Litem work. Brenda is sensitive to the needs of families and individuals and promotes problem solving with integrity and creativity for her clients through the use of mediation, litigation and collaboration. Brenda believes that educating her clients about their particular Family Law issues will enable them to identify their interests and move forward with clarity and understanding so that they can create sustainable solutions. Over the span of her legal career, Brenda has worked as a Guardian Ad Litem with hundreds of children in both dependency cases and custody cases. She is a strong children's advocate. Judges frequently appoint her as the Guardian Ad Litem in difficult cases concerning neglect and abuse. She has received several awards and recognitions for her Pro Bono work as a children's advocate. Brenda is a member of the Florida Bar Association, the Orange County Bar Association, The Central Florida Association for Women Lawyers, The Florida Bar Family Law Section, The IACP, and The Collaborative Family Law Group of Central Florida, where she currently serves as the Administrator. Brenda has been a trainer for a 2-Day Basic Training in the Interdisciplinary Model of Collaborative Practice. Adam Magill, MBA, AVA, CBA, CFFA is a practical-orientated financial expert specializing in business valuation, litigation support services, forensic accounting who enjoys creative problem solving in both seemingly simple and complex cases. He tackles challenges head-on while maintaining a high level of prudence. His experience in family law both in the litigation setting and collaborative law setting make me uniquely able to guide clients through a very difficult time in their lives. In addition, his work history in business valuations, public accounting, private accounting, financial planning, investment banking, and as a broker enable him to offer insights and creative solutions to every case. He is a Certified Business Appraiser (CBA), Certified Valuation Analyst (CVA), Master Analyst in Financial Forensics (MAFF). With over 15 years of business valuation and litigation support experience (mostly in family law, but some outside), I have completed in excess of 600 business valuations for privately held companies. He also worked for a major financial planning/ brokerage firm, five (5) years in public accounting with a major CPA firm in the Tampa Bay area, worked with a boutique investment banking firm specializing in debtor-in-possession transactions, and have worked four (4) years in private accounting as the Chief Financial Officer (CFO) for various privately held corporations (including Orlando Harley-Davidson ). This experience has exposed him to a wide variety of industries and specialties. Adam went to the University of Florida MBA, concentration in Finance & BSBA, Finance and Management. He is a Board Member of the Collaborative Family Law Group of Central Florida; member of the American Society of Appraisers, Institute of Business Appraisers (IBA), National Association of Certified Valuation Analysts (NACVA), Orange County Bar Association and the Eagle Scout.

8 Robert J. Merlin, Esq. is the President of the Collaborative Family Law Institute and a partner in the Law Offices of Robert J. Merlin, P.A. in Coral Gables, Florida. Practicing law in the State of Florida for over 32 years, Bob is Florida Bar Board Certified in Marital and Family Law and specializes in Marital and Family Law, especially Collaborative Family Law. He is a member of The Florida Bar, the American Bar Association, the Dade County Bar, the Coral Gables Bar, the International Academy of Collaborative Professionals, the Collaborative Family Law Institute and Collaborative Family Lawyers of South Florida, the last three organizations being dedicated to the promotion of the practice of Collaborative Family Law as a means of amicably dissolving marriages and resolving family disputes. Bob lectures regularly on Collaborative Family Law at the University of Florida Levin College of Law and to various organizations of lawyers and other professionals. He is the Vice President and is a member of the Board of the Florida Chapter of the Association of Family and Conciliation Courts, he is on the Eleventh Judicial Circuit Court Parenting Coordinators Advisory Board, he is on the Legislation Committee and is the Co-Chair of the Mediation and Collaborative Law Committee of the Family Law Section of The Florida Bar and he is on the University of Florida Levin College of Law Center on Children and Families Advisory Board. Bob graduated with honors from the University of Florida College of Law with a Juris Doctor in 1978, where he also was an associate editor of the Law Review, and also attended Cambridge University, Cambridge, England, The Institute of Law-Polish Academy of Sciences in Warsaw, Poland and the Walter F. George School of Law, Mercer University in Macon, Georgia. Bob received his undergraduate degree from the University of Florida in 1976 with a Bachelor of Science in Accounting. Bob received the 2012 Stu Webb Leadership Award from the Collaborative Family Law Institute, the 2006 Dade County Bar Pro Bono Outstanding Law Firm Award and the 1998 Florida Eleventh Judicial Circuit Ray H. Pearson Guardian-Ad-Litem Award. He is listed in the Leading Florida Attorneys in Family Law with the Network of Leading American Attorneys, is among the Florida Super Lawyers and the Florida Trend Magazine Florida Legal Elite, he is AV rated with Martindale-Hubbell and he is listed in Martindale-Hubbell s Preeminent Family Law Attorneys. Bob has a long history of involvement in various community organizations. He received the 2008 Gator Award from the University of Florida Hillel, he is a Past Chair of Jewish Community Services of South Florida, Inc. and he is on the Board of the Greater Miami Jewish Federation. Bob can be contacted at [email protected], Web site: Rick D. Miller, CLU, ChFC, RHU A seasoned executive with 35 years of senior experience in all aspects of the life, health, and annuity business; including significant management experience in pension administration. He received his B.A. in Social Work from Wright State University, Dayton, Ohio. He is a Certified Chartered Financial Consultant (ChFC) and Chartered Life Underwriter (CLU). He is Principal of The Planning Partners in Tampa focusing on securing the future of individuals, closely held businesses, and professional practices through tailored solutions comprising insurance, annuities & qualified plans. Independent broker(s) with access to over 50 of the best life insurance and annuity companies in America. Settlements for Family Law & Collaborative Divorce cases, along with offering the products needed in life insurance, annuities, disability income replacement and health insurance in implementing plans. Personal Estate, Retirement & Asset Protection: Helping identify estate, retirement and asset protection needs of individuals and families. This is performed in conjunction with legal and tax advisors. Teresa F. Parnell, Psy.D is a licensed psychologist, certified family and county mediator, and certified addictions professional. She practices in the areas of family, criminal and dependency cases. ln the area of family law she conducts psychological evaluations and parenting plan evaluations, consults with parents on developing parenting plans, provides therapy to divorcing adults as well as their children, and serves as a court appointed parenting coordinator. She is committed to alternative dispute resolution options for divorces involving minor children and to the education of divorced parents to facilitate positive co-parenting. As a parenting coordinator and co-parenting therapist, she often assists parents in trying to implement the parenting plan developed during their dissolution. Dr. Parnell is trained in the interdisciplinary model of Collaborative Family Law and has functioned as a neutral process facilitator in numerous Collaborative Divorce cases. She is currently on the board of the Collaborative Family Law Group of Central Florida. In addition to several presentations on collaborative practice at international conferences (i.e., lnternational Academy of Collaborative Professionals; Association of Family and Conciliation Courts; American Psychological Association, etc.), she has been the primary trainer for a 2-Day Basic Training in the Interdisciplinary Model of Collaborative Practice.

9 Enid Miller Ponn, Esq. has been practicing law in Florida for 28 years and has been a certified family law mediator since She focuses on collaborative family practice and family law mediation and for the last 12 years, has limited her work in family law exclusively to these non-adversarial dispute resolution alternatives. She is currently the owner and director of the Center for Collaborative Divorce and Mediation in Weston. Enid received her J.D. in 1984 from the University of Miami College of Law, her Masters degree from the Johns Hopkins School of Advanced International Studies, and her undergraduate degree from UNC Chapel Hill. She is a founding member and served on the board of directors of the Collaborative Family Law Professionals of South Florida for the past 12 years; she is a member of the Collaborative Family Law Institute, the International Academy of Collaborative Professionals, and is a director of the Collaborative Council for the State of Florida; Enid is also currently co-chairing the Certification and Training subcommittee of the Mediation and Collaborative Law Committee of the Family Law Section of the Florida Bar. Enid has lectured to national, state, and local audiences on collaborative practice and on mediation and has published articles, essays and coauthored chapters on collaborative law-related topics in educational journals. Enid is bilingual in Spanish and English. Rosemarie S. Roth, Esq. has been a sole practitioner in Family Law for 26 years in Miami, Florida. She has been instrumental in bringing Collaborative Practice to Florida and founded the Collaborative Family Law Institute (CFLI) in After servicing as President of CFLI for ten years, Rosemarie turned her efforts to developing the Collaborative Family Council of Florida to create a cohesive body of professionals who work in the collaborative process, to educate law students in the collaborative process and to coordinate trainings throughout the state. She is a certified mediator, a principal in the Florida Collaborative Trainers, Inc., an Adjunct Professor at the University of Miami School of Law and co-author of the chapter, Collaborative Law in the Florida Bar CLE book, Florida Dissolution of Marriage. Edward Sachs, CPA has spent over 20 years as a forensic accountant building an expertise in litigation and valuation matters. After four years with a national accounting firm and four and a half years with a large local firm, he spent ten years in solo practice assisting attorneys and clients throughout South Florida in the analysis and presentation of complex accounting and valuation matters in the litigation arena. Mr. Sachs joined the firm of Appelrouth Farah & Co. in 1999 as Director of the Litigation Services Department supervising all business valuations, forensic accounting and ad valorem tax appeals handled by the firm. He serves as an expert witness in Federal and Circuit Courts and as a forensic accounting and valuation consultant to legal counsel. His experience as a Neutral Forensic Accountant in traditional cases has enabled him to work as a Neutral Financial Professional in collaborative cases. Mr. Sachs has become a collaborative trainer and is now a member of the Florida Collaborative Trainers. Mr. Sachs can be contacted by [email protected]. Website: Pamela A. Schneider, Esq. is a partner in the law firm of Wershow and Schneider, P.A., practicing primarily collaborative family law. Pam has been an Adjunct Professor at the University of Florida Levin College of Law teaching Collaborative Law since 2008 and has presented many lectures on mediation, collaborative law and family law at the law school as well as to professional audiences. She is currently a member of the International Academy of Collaborative Professionals, the Collaborative Family Law Council of Florida, the Collaborative Divorce Professionals of Gainesville (President Elect), the Association of Family and Conciliation Courts and its Florida chapter, the Florida Academy of Professional Mediators (Diplomat), the Eighth Judicial Circuit Bar Association, the Family Law Sections of both the American Bar Association and The Florida Bar, The Florida Bar Family Law Section Mediation and Collaborative Law Committee and the Family Law Committee of the Eight Judicial Circuit Bar Association. Previously Chair of The Bar subcommittee charged with formalizing training and certification for collaborative practitioners. Pam remains actively involved in that endeavor.

10 Caroline Black-Sikorske, Esq. practices exclusively family law in Tampa, Florida with the law firm of Mason Black & Caballero P.A. She is a board-certified marital and family lawyer and a Fellow in the American Academy of Matrimonial Lawyers. She is current Chair of the Tampa Bay Collaborative Divorce Group and vice-chair of the Hillsborough County Collaborative Law Section. She is current President of the AAML Florida Chapter. She is a past Chair of the Florida Bar Family Law Section, past President of the Hillsborough County Bar Association, and a past member of the Supreme Court Family Court Steering Committee. She is mentioned in Best Lawyers in America, one of the top 100 women family lawyers according to Florida Legal Elite, one of the top 50 Women Attorneys in Florida by American Registry and is AV-rated by Martindale-Hubbell. She has written numerous articles and published several chapters on family law in the Florida Bar Continuing Legal Education publications. She received her law degree from Stetson University and her B.S. degree from Cornell University. More information can be found at Audrey Simmons, CPA is a certified public accountant, certified divorce financial analyst, and certified family mediator in private practice in central Florida. She also has a Master of Arts in Mental Health Counseling. With 30 years experience as a CPA as well as a background in counseling and mediation, Audrey brings a unique blend of talent, experience, and skills to her work as a divorce consultant. Her practice is currently limited to divorce financial consulting, litigation support services, collaborative family law, and family mediation. Audrey s preference is to assist divorcing couples as a financial neutral in the context of Collaborative Law, mediation or settlement negotiations. She is dedicated to helping her clients protect the well-being of their children and conserve their financial resources by avoiding the court system whenever possible. She is trained in the interdisciplinary model of Collaborative Family Law and frequently functions as a financial neutral in Collaborative Divorce cases. She is a board member for the Collaborative Family Law Group of Central Florida. She has been a trainer for a 2-day Basic Training in the Interdisciplinary Model of Collaborative practice. Linda Solomon, LMFT is a Licensed Marriage and Family Therapist in Dallas, Texas with 27 years of experience. Her practice is focused on working as a Neutral Mental Health Professional on collaborative teams. She has trained mental health professionals, nationally and internationally, on the role of the Neutral Mental Health Professional. She is also a member of an interdisciplinary training team. She is former board member of IACP and CLI-TX. Lana M. Stern, Ph.D (University of Miami) Licensed Psychologist, Licensed Marriage and Family Therapist, Parent Coordinator and Florida Supreme Court Certified Mediator. Dr. Stern has been in private practice in the Coral Gables, Florida area for over 25 years. She is a member of the American Psychological Association, Florida and Dade County Psychological Associations, American and Florida Association of Family and Conciliation Courts and the International Association of Collaborative Professionals. She has been a member of the Collaborative Family Law Institute of Miami for the past 8 years and is the immediate past Vice President. She serves on the CFLI Board, is Chairperson of the Mental Health Committee and serves on the education and membership committees. She is the Miami-Dade delegate representing Mental Health for the Collaborative Family Law Council of Florida and is presently serving on the Board. Dr. Stern has served as an educator, counselor, and trainer in the 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 taught the divorce education course for divorcing parents as part of a private group Positive Transitions. She was an Adjunct Professor at Florida International University, supervising Master s mental health and school counselors during their Practicum and Internship for 7 years and was an Adjunct Professor at University of Miami Law School in Spring 2012 co-teaching the first Collaborative Law class offered at the university. She received the FPA Outstanding Contribution to Psychology in the Public Interest award and DCPA Certificate of Commendation award in 1993 for her work in the area of Child Sexual Abuse. Dr. Stern has lectured statewide on the role of the neutral mental health professional s role in the Collaborative Law Process for the Florida Psychological Association, Miami-Dade Psychological Association and the Financial Professionals Association, University of Miami Law School, and The Levin School of Law in Gainesville. She has presented multiple 2-day basic trainings to attorneys, mental health professionals and financial professionals in Miami and throughout Florida. She has worked extensively in collaborative family law cases as the neutral mental health professional. She co-authored the chapter Collaborative Law in the Florida Bar CLE handbook, Dissolution of Marriage. Dr. Stern co-founded Florida Collaborative Trainers in 2011, an interdisciplinary training group, which has trained professionals in Miami and throughout the state of Florida. Dr. Stern can be contacted by at [email protected] and

11 Nancy S. Weber, Esq. has been a shareholder in the family law firm of Sasser and Weber, P.A. in Orlando for more than twenty-five years. She is certified in family mediation by the Florida Supreme Court and is trained in the interdisciplinary model of Collaborative Family Law. She practices family law with a goal of reaching mutually acceptable divorce settlements. She is a frequently sought after mediator and collaborative lawyer in the Orlando area. She believes the Collaborative model and mediation helps preserve the family relationship and leads to better resolutions than those obtained in the courtroom. Nancy is past president of the Central Florida Association of Women Lawyers and chaired the Orange County Commission on the Domestic Courts. She currently serves on the executive committee of the Central Florida Family Law Inns of Court. She was named Best Family Lawyer in Orlando for 2010 and is listed in Best Lawyers in America in Family Law for the past six years, as well as Florida Super Lawyers publication and Florida Trend s Legal Elite. She is AV rated by Martindale-Hubbell. Samuel J. Weiss, Esq. has been committed to the practice of law and the service of his clients for 35 years. Mr. Weiss is a Certified Family Law Mediator and Arbitrator who concentrates his practice in family law, including divorce, post-dissolution matters, support, custody and related issues. His prior experience in the commercial banking and auditing fields provides him with a unique prospective when evaluating complex financial assets. Mr. Weiss is committed to Alternative Dispute Resolution and is the founder of the Collaborative Family Law Group of Central Florida. His personalized approach to each situation assures the client that a difficult and emotional time will be handled with sensitivity. Mr. Weiss enjoys the highest rating given attorneys by the most prominent international rating organization of attorneys. He is AV rated by Martindale-Hubbell. Nina M. Zollo, Esq. has worked on domestic violence issues in Florida for over fifteen years. On behalf of the Florida Coalition Against Domestic Violence, she provides training to lawyers, advocates, and other professionals. Nina currently serves as the chair of the Florida Attorney General s Statewide Domestic Violence Fatality Review Team, a member of the Florida Supreme Court Unified Family Court Steering Committee and the Florida Supervised Visitation Standards Advisory Committee. She is graduate of the University of Florida College of Law, and has an undergraduate degree from Princeton University.

12 Table of Contents Collaborative Law in Walking the Collaborative Walk Future of Collaborative Law Collaborative Review Handout Settling Collaborative Divorce Cases with Mediation Advanced Negotiation: Understanding and Using Team Dynamics in Collaborative Practice Collaborative Law and Domestic Violence - Assessing the Risks and Benefits Judicial Leadership and the Collaborative Practice Interest-Based Negotiation: The Key to Agreement Readiness Interest Based Strategies Power Point Interest Based Negotiation Strategies Creating Agreement Readiness to Build Agreement Reframing Recognizing and Managing the Challenging Client Who Are High Conflict People? Collaborative Law: Basics & Tips Users Guide: The MHP in the Collaborative Process The Role of the Child in the Collaborative Process - A Discussion Controversial Issues for the Neutral Financial Professional Bringing Collaborative Practice to Underserved Families The Role of Law in the Collaborative Practice Using Research to Develop Competency of the Mental Health Professional Role of Neutral Financial Professional in Maintaining Integrity of Collaborative Process Building a Successful Collaborative Practice Group The Uses of Life Insurance and Annuities in Collaborative Practice by Increasing Settlement Options Pitfalls in Collaborative Practice Optimizing The Pivotal Role of a Mental Health Professional: A Panel Discussion Collaborative Practice Groups

13 Collaborative Law in 2033 By Forrest Woody Mosten, Esq.

14 Walking the Collaborative Walk taking twenty-five steps toward peacemaking chapter NINE You now have the perspectives, concepts, and skills to work with clients and other professionals to produce informed, fair, and lasting agreements for divorcing families. You also have an opportunity to establish a professional practice that can financially support you and your family and permit you to remain in the field for the rest of your career. This will allow you to develop your skills further and make it easier for the next generation to become collaborative practitioners. This is good. Yet you are not done with the journey. Frankly, if over the next twenty years you limit yourself to handling divorce settlements and building a profitable practice, you will be doing what traditional divorce professionals have been doing for decades. You may be accomplishing these goals in a different way, a better way, but this still may not be enough. You have an opportunity to make a lasting contribution to the families you touch and to make a difference in your own life that goes far beyond reaching a 189

15 better kind of divorce settlement and making your living in a less destructive way. If you reach just a bit more, to become a peacemaker through collaboration, you have a chance to truly make a difference in the lives of every member of the families you serve as well as in the quality of your own personal life. Just as the absence of war is not peace, helping people get divorced without litigation does not make you a peacemaker. With your intentionality to start a peacemaker path, you can work toward that transformation, one step at a time, starting immediately. One underpinning of the collaborative movement is that everyone and everything is interconnected. No one can resolve conflict alone. No one can create peace without the help of others. We all need each other and must honor the contributions that each of us makes. Every idea and strategy in this book has developed from the thinking and efforts of my collaborative colleagues and those who came before them. The move away from an adversarial approach toward collaboration, so eloquently articulated by Julie Macfarlane, Nancy Cameron, and Pauline Tesler, was built on the shoulders of Stu Webb s courage and progressive ideas. Webb also drew inspiration from the interdisciplinary and conflict resolution contributions of mediation and the legal access focus of the unbundling movement. This collaborative movement goes forward as we extend the journey to walk toward peacemaking. I am inspired by the groundbreaking work of Nan Waller Burnett in her 2007 book, Calm in the Face of the Storm: Spiritual Daily Practice for the Peacemaker. Written for the personal support and growth of collaborative professionals, mediators, and others who give service in resolving conflict, Burnett s book contains 365 daily readings, one for each day of your next year. When you are ready, you might skim through the daily readings to see if any of them have meaning for you. In her introduction, Burnett states: Each day sets forth a theme, a short discussion of the topic, an introduction to a meditation, and a suggestion for a journeying exercise.... Working for inner peace, peace for the planet, and transformation in relationships has been my passion for many years.... In the course of working with conflict every day, I found that I had chosen isolation, I felt trampled, and deprived of energy on the weekends.... I was swimming in the problem saturated ocean of my clients. In talking with other practitioners, I discovered that I was not alone.... I have strong opinions about the practice of training peacemakers and conflict professionals to 190 Collaborative Divorce Handbook

16 be step-followers. We need to be training the practitioner to be reflective, to understand theory, and to bring a more personal holistic force to the table. If your work is in human relationships, peace, conflict or conciliation, with patients, employees, or citizens or you simply want peace on the planet, this book is meant for you [Introduction, pp xi xiv]. These words are certainly meant for me. I still gain immense personal satisfaction and financial reward from helping clients resolve conflicts and form positive relationships and from my interaction with colleagues. However, I have needed more. This has led to my involvement with other peacemaking initiatives that go beyond my work with divorcing families. Balancing my practice with these peacemaking efforts has not been easy. Yet the journey is exciting, and my practice and peacemaking work seem to enhance each other. Although Burnett s book is intended for our spiritual growth and comfort, this approach mirrors my own efforts in Mediation Career Guide (2001) to adapt peacemaking values to developing a signature for our work with our clients and with each other. Burnett uses her daily themes as a tapestry to weave a living definition of peacemaking. I have selected some of Burnett s themes and linked them with my vision of peacemaking values to offer strategies to integrate peacemaking in your work at the negotiation table and in collaboration with colleagues. As you review each value, take the following steps to inject them into the cases you are working on now and practice development. Read each of the steps aloud to yourself and then write out your answers as you develop them: 1. Explain each value and its importance in your work. 2. Think about how you share and communicate with clients and with colleagues and how you implement each value in your work. 3. Ask yourself how each value applies to the process that you use to resolve any issue under discussion. 4. Reflect on how you can implement each value into options to resolve any issue. Discuss these values in your practice groups, with colleagues at conferences and lunch, and with friends and your family. This is not a one-time conversation. It will develop and evolve throughout your collaborative career. Walking the Collaborative Walk 191

17 I began to understand that in collaborative practice, as in most forms of art, the space in between is as important as the space that is filled. It is impossible for me to create an environment for clients to safely negotiate if I am not fully present myself. This aspect of being present is one of the great gifts I receive from working in the collaborative model. NANCY CAMERON, ATTORNEY, VANCOUVER, BRITISH COLUMBIA, CANADA 25 Strategies to Integrate Peacemaking into Your Work 1. Peacemaking: Do you believe that peace and acting in a peaceful way toward those in pain and conflict are values in themselves? What impact can your direct injection of peacemaking have on negotiations between divorcing spouses and meeting their children s needs? Do you talk about peace with your collaborative colleagues and share a vision of peace in the world with them that goes beyond your professional practice? 2. Empowerment: Do you believe that people should have control over their own destiny and reduce their dependence on professionals, courts, and other experts? How can clients gain such empowerment over their own parenting and financial decisions with their spouse? How can clients gain empowerment in controlling their own destiny with your expertise and power in play? How can each collaborative divorce professional be empowered to speak her or his voice at the table and in the development of the practice? 3. Cooperation: Do you believe people work more effectively and are more satisfied when they are working together? How can divorcing parties cooperate so both get their interests met? How can you and your collaborative colleagues better cooperate in sharing practice development materials and referral sources? 4. Fairness: Do you believe that people should get a fair shake out of life and that human action and institutions should be designed with fairness as an outcome? How do you approach clients with the importance of fairness (as opposed to just getting the issue behind them)? What are the standards that you use to measure fairness in a divorce in any one issue and in a settlement package that has been knit together? How do you react when you perceive that you have been treated unfairly by a colleague? 192 Collaborative Divorce Handbook

18 My vision for collaborative law is that this practice will become the method most commonly practiced for all conflict resolution issues throughout the world. STU WEBB, ATTORNEY, MINNEAPOLIS, MINNESOTA 5. Satisfaction: How important do you believe is the client s expressed satisfaction with the final settlement and with your competence, efforts, and fees in evaluating your collaborative service? How do you assess the satisfaction of clients? How do you reach out to your colleagues to determine if they are satisfied with you and with their involvement in the collaborative process in a case or governance of your local practice group? Most clients want peace, not war, and collaborative practice gives them the tools and responsibility for waging peace and creating solutions for their family. Seeing clients able to speak to one another and even embrace as their divorce is finalized has been positive for families and far more professionally satisfying for me than winning at trial. SUSAN A. HANSEN, ATTORNEY, MILWAUKEE, WISCONSIN 6. Options: Do you believe that people do better when they have choices in their lives? How do you ensure that clients have a full array of options, opportunities, and help to make good choices? How do you use options to determine the involvement of each collaborative divorce professional during a case? 7. Creativity: Do you believe that carving out time and devoting energy to create new ideas and opportunities is a value in and of itself? What innovative methods do you use to support clients in creatively designing their own solutions? How do you and your colleagues stimulate creativity in organizing and decorating your office and in your communication with staff? 8. Hope: Do you have a belief in the possible, and do you believe it is important for you to share that belief with others who may be paralyzed by fear and Walking the Collaborative Walk 193

19 pessimism? What strategies have you put in your toolbox to instill hope in your clients during setbacks in negotiations? If, after investing time and money to develop your practice, you hit setbacks or a flat growth period, how do you and your colleagues keep up your own hope for a successful future? 9. Reconciliation: Do you believe that people benefit from staying in or returning to relationships with each other, even if one or both parties have acted poorly? How do you actively initiate the possibility of apology and forgiveness for the parties in a divorce? In your collaboration with colleagues, how do you reach out to apologize to others if you believe you have caused hurt APOLOGY An apology is a powerful tool for changing the dynamics of a negotiation and creating a climate conducive to collaboration. To do so, the apology must be from the heart. It must be sincere and spontaneous and it must be offered at the right time. Lawyers are generally reticent to recommend that their clients offer apologies. Some view it as an admission of liability. To clients, an apology often represents an acknowledgment of personal responsibility and regret for the problem. If an apology is made at the first settlement meeting, it can generate a positive feeling and the process started on the right foot.... An insincere apology can be worse than none at all.... The form of the apology is important. I am truly sorry if you were hurt by something that I said or did is preferred over I am sorry that you feel hurt by something I said or did. Moreover, the apology should be unconditional and unequivocal. It ought not to be followed by some defensive explanation of behavior. An apology from one party may invite the other to reciprocate. If the other so responds, it creates a very positive climate for collaboration. However, reciprocity is a bonus, not an expectation. It is implicit, not explicit. The most effective apologies are those offered without anticipation of an apology or concession made in return. Source: R. Shields, J. Ryan, and V. Smith, Collaborative Family Law: Another Way to Resolve Family Disputes (Toronto: Carswell Publishing, 2003). 194 Collaborative Divorce Handbook

20 or acted badly? How do you accept a heartfelt apology or express forgiveness from a colleague who has hurt you? 10. Transformation: Do you believe that you and others can change for the better? How do you encourage your clients to change during or after a divorce? How do you accelerate your own professional and personal change from interaction with your colleagues and ideas and developments generated in our field? 11. Rational problem solving: Do you believe that people can find solutions by thinking through and talking about difficult issues? How do you motivate discussions between parties when tough issues and a gap between positions verge on impasse? 12. Trust: Do you believe that reliance on the veracity and integrity of the words and actions of another is necessary for lasting agreements and healthy relationships? How do you reestablish or initiate trust between parties? How do you react when you believe that your trust has been betrayed by a collaborative colleague? 13. Compassion: Do you believe that sympathy and concern for the misfortune of others are important to make human connections? How do you demonstrate compassion for both your client and the other party? If colleagues are struggling in your case or in their personal lives, how do you express compassion for them? 14. Courage: Is facing and dealing with fear and difficult situations a quality you respect? How do you encourage and recognize courage demonstrated by parties during their divorce? How do you show courage when there are heavy risks in handling important policy or ethical issues in your local professional community? 15. Tolerance: Do you believe in recognition and respect for differences in beliefs and practices? How do you increase tolerance for differences in values and perspectives between parties that are inflaming the discussion and retarding negotiation progress? How do you tolerate different and perhaps less effective professional decisions and actions that your colleagues make? 16. Generosity: Do you believe that it is important to give unselfishly to others? How do you express generosity toward the other party or professionals who Walking the Collaborative Walk 195

21 have more or less power or resources than your client? How do you generously reach out to colleagues whose practices are lagging or whose reputations are tarnished in the professional community? 17. Patience: Do you believe that it is an admirable human quality to endure difficult situations without complaining or to forbear from reacting? How do you encourage patience in highly reactive clients or assess when patience is hurting passive or disempowered clients? How do you maximize your own patience when you have ideas you want to share or wrongs you want to right? 18. Thankfulness: Do you believe it is important to feel or express gratitude and to count our blessings for what we have? When your client or the other party is constantly complaining, how do you inject a feeling of thankfulness at the table? How do you demonstrate your thankfulness for the contributions of colleagues in your local practice group? 19. Healing: Do you believe that the restoration of emotional and financial health and patching up personal rifts should be goals of divorcing parties? How do you accelerate and encourage healing within the family beyond getting a deal with a settlement agreement that ends the divorce process? If there are control or power struggles among professional colleagues in your local professional community, what role do you play in healing this damage? 20. Transparency: Do you believe that open, clear, and easily understood communications and actions are essential to the collaborative process? How do you facilitate and ensure transparency of motives and financial disclosures if such transparency was the exception during the marriage? How do you make sure that your own words, deeds, and motives are transparent to clients and colleagues? 21. Do you believe that limits on conduct are important for parenting? Do you believe that divorcing spouses should budget or cut back if they have reduced income following separation? How do you raise the issue and the enforcement of boundaries when one or both parties are resistant to budgeting or cutting back? How do you set your own personal boundaries with your clients and colleagues, and how do you react if and when your boundaries are violated? 196 Collaborative Divorce Handbook

22 22. Responsibility: Do you believe that we all should be accountable for our own behavior and that we should honor our moral, ethical, legal, and financial obligations? How do you teach responsibility in collaborative discussions when one or both parties have demonstrated irresponsible behavior? How do you stay responsible for your obligations to your colleagues, and how do you handle the situation if and when you are let down? 23. Honoring traditions: Do you believe that family rituals and customs benefit children and their parents? How do you identify and encourage honoring past family traditions and creating new ones during settlement discussions? How do you establish meaningful traditions within your local collaborative community? 24. Optimism: Do you believe that a positive outlook for the best possible outcome provides energy and tangible benefits for people? How do you maintain your own optimism when naked and constructive conflict erupts in front of you? How can you educate pessimistic negative parties about possible good outcomes? How do you express optimism professionally when there are setbacks of pain in your own life? 25. Self-acceptance: Do you believe that people should give their values the benefit of the doubt and be comfortable and easy with themselves during the good, bad, and the ugly? How do you encourage self-acceptance of parties as well as acceptance of the other party? How do you take care of yourself and cut yourself a break when so much work remains unfinished and so much conflict remains unresolved despite your efforts? You may have other core values that are not on this list, such as love and belief in family and children; devotion to a divine being or religion; commitment to economic justice and fair distribution of wealth; preservation of natural resources and our planet; or the eradication of tyranny, mass disease, or other social ills. Fill in other core values in your life right here: Walking the Collaborative Walk 197

23 Whatever your core values are, think about what is important to you and how you can insert them in your collaborative work. Although it is beyond the scope of this book, think about how you live out your values with your family and others who are important to you outside your work life. What steps would you like to take in this direction? Our work is demanding, and we need the support and diversion of our loved ones and our nonwork community. Our peacemaking work demands that we walk the walk outside the office as well. Congruence between our private and career lives not only boosts our credibility and confidence for success in collaborative divorce, but an absence of congruence can have an insidious and negative impact on our lives. You are in charge of whether there is a next step in moving toward a peacemaking career. If the choice is affirmative, following are some avenues in which you might walk your peacemaking and collaborative walk. Collaborative Decision to Enter the Field If you have a family to financially support or others who depend on your time and attention, be sure to consider them when deciding whether to make the financial and time investment necessary to make a career change (see Chapter Eight). You will need their support in the challenging days ahead. Resistance or resentment at home could sabotage your efforts to succeed in the collaborative marketplace and risk your family base and relationships. If you have friends and colleagues who are already in collaborative practice, sit down with them and ask about the many ways this profession affects them. Collaborative Transition from Your Current Day Job The way you leave or transform your current partnership or job is the next step in your collaborative journey. Honest and heartfelt discussion may not sooth all hurts, but it may go a long way. Instead of leaving emotional or financial wreckage, you can do everything possible to reduce the burdens in your current workplace and maximize opportunities for future referrals and continuation of friendships for decades to come. Collaborative Training Experiences You will be learning more than the curriculum in your bulky training manual. The relationships you form during the training seminar you take will be the basis 198 Collaborative Divorce Handbook

24 of your new professional future. You will have shared experiences and a common set of skills and approach. During the training, pay attention to the other participants as much as to the material and process. Arrive early and stay late (as much as possible given your other responsibilities). Be open to invitations to go off-site for lunch or have dinner together. Treat the training as a trip out of town so that you are not distracted by calls or other obligations. Follow up after the course with other training participants. They can be your core for a study group or structured reading program. For some people, going to a movie theater alone or traveling to some new and exciting place alone is very enjoyable. Not for me: I prefer to go with my wife or my kids, or a friend or relative. Perhaps there is something in the human condition that makes shared experiences richer and more meaningful to us. The synergy of teamwork is a powerful and exhilarating force. Our team at Boston Law Collaborative, currently just over a dozen people, gathers for lunch every Thursday to talk about our cases and our lives outside work. Our client work is usually done in small teams, but even working on a case by myself is a pleasure if there is a collaborative lawyer on the other side who is willing to go up to the balcony with me and talk candidly and cordially about our case. DAVID HOFFMAN, ATTORNEY, BOSTON, MASSACHUSETTS Field Experience in Peacemaking Organizations Peacemakers coach and represent clients, mediate, and otherwise become actively of service to the underserved. Your community probably has nonprofit organizations that would welcome your involvement. The collaborative way in which you volunteer and serve will be important to your experience and future reputation. Be collaborative in following organizational rules while at the same time gently offering suggestions for improvement. Any suggestion should be accompanied by your offer to help solve the problem. Take the time to be prepared for your volunteer cases, and treat them in the most professional manner possible. Make sure to bring your flip chart and laptop, and remember to dress professionally. Treat every client and colleague as if you are being paid your full hourly rate. This approach will pay off for many years to come. Walking the Collaborative Walk 199

25 Collaborative Work with Mediators and Other Peacemakers Regardless of your professional origin or particular role (coach, evaluator, litigator in other cases), collaborating with and learning from other peacemakers will be invaluable to you and to them. Generally peacemakers are generous to colleagues. Be ready to accept an invitation to observe as a fly on the wall, review a manuscript, attend a meeting or conference of another organization, or use practice materials. And be sure to return the favor. A mediator s thoughts about your performance at a case consultation can be invaluable to you. Your participation can bring new ideas and approaches to your colleagues work. Follow up on the help from your colleagues with acknowledgments for their generosity. Send them clippings or forward links that you believe will be helpful to your colleagues. Building your practice and reputation can have payoffs for decades to come. Your Collaborative Colleagues In The Complete Guide to Mediation (1997a), I suggested the following mantra to family lawyers when reviewing mediated settlements: Let it go! This means that winning is not making every technical point or making sure that no money is left on the table. Winning for the collaborative professional means making sure the client understands trade-offs and is comfortable with the overall settlement. The same mantra, Let it go, applies to collaborative teamwork. If you are a mental health professional, you might observe that a lawyer or finance professional did not execute a reframe sensitively or might have been intimidating to her own client or the other party. Let it go. If you are a finance professional and you hear the lawyer misstate the rules for calculating capital gain on a family residence, let it go. If you are a lawyer and the mental health professional becomes paralyzed and stammers during a client tantrum or outburst, let it go. Letting it go does not mean that you will be negligent or dilatory in making sure that the client eventually gets proper information or advice. Letting it go does mean that the goodwill and relationship of your collaborative partners may mean more in the long run (including this case) than calling out a colleague by causing a loss of face or respect. Private debriefing sessions are the place to discuss what worked and what can be done better next time. Just as clients have relationship accounts, so do colleagues. Always try to make deposits of positive acknowledgments and good acts, and try to minimize withdrawals due to unnec- 200 Collaborative Divorce Handbook

26 Our biggest problem in life is to get past what other people hold out as our boundaries. In my reception area is a quotation by Margaret Mead: Never doubt that a small group of thoughtful committed citizens can change the world. Indeed it s the only thing that ever has. SHERRIE R. ABNEY, ATTORNEY, DALLAS, TEXAS essary conflicts or control struggles. It is a difficult balance, but one from which you and your collaborative colleagues will benefit and better enjoy your work. Collaborative Contributions to Your Practice Group and Other Collaborative Organizations In 1997, national commercial mediator Jeff Kitchaven and I coauthored an article, Our Communication Is Important Too. After sitting in many mediator organizational meetings, both of us were concerned by the lack of mediative kindness and efforts to listen that professional mediators displayed to each other. We observed turf struggles and adversarial wrangling over issues important to the future of mediation that affected all of us and the public. The same caveat is important to the collaborative community. Many colleagues have strong views about issues that can be viewed from different perspectives. Is the single neutral mental health professional or two-party divorce coach model better? Is cooperative law a viable or destructive option in the marketplace? Should there be certification or other regulation of collaborative practice? Should collaborative practitioners support the Uniform Model Collaborative Law Act? Regardless of the importance of any one issue, it is important that we engage in dialogue rather than confrontationally debate these issues How we speak with each other is not less important than the points we wish to make. We need to watch the tone of our public discourse in listservs and organizational outreach. We should stress our commonality and make collaborative allies with other organizations and professionals regardless of differences over any one issue. Our model is more than what we say, just as it is at the table with our clients. Collaboration has its own rewards, and many of them are unforeseen at the time. Walking the Collaborative Walk 201

27 DIALOGUE In their monumental book, Dialogue (1998) Linda Ellinor and Glenda Gerrard focus on the continuum from debate to discussion to dialogue. Converting contentious interactions from lawyerly debates of positions to collaborative dialogue is one of the tools you need to master. Nancy Cameron has these insights about dialogue: In developing dialogue, we listen to discover. This way of listening is a very different from the kind of listening used to build debate as a litigation lawyer. One of the difficulties faced as we aim to become more skilled as a collaborative practitioners is how to move into dialogue when the other lawyer wishes to engage in debate. Source: N. Cameron, Collaborative Practice: Deepening the Dialogue (Vancouver, B.C: Continuing Legal Education Society of British Columbia, 2004), p LAST THOUGHTS You now have the concepts and resources to start either a collaborative divorce practice or improve your current work. By being of service to divorcing families and professional colleagues, you will lay a foundation for success in your day job. And by taking the next step to incorporate peacemaking values in every aspect of your work, you will not only help your clients and colleagues become better people, but you will also be taking a small step in improving the policies, institutions, and overall health of the families whom you touch and the society in which we and our grandchildren shall live. 202 Collaborative Divorce Handbook

28 THE FUTURE OF COLLABORATIVE PRACTICE: A VISION FOR Forrest S. Mosten You are not here simply to make a living. You are here in order to enable the world to live more amply, with greater vision, with a finer spirit of hope and achievement 2 Woodrow Wilson, 28th President of the United States Visionary of the League of Nations In just twenty years, collaborative practice has grown and blossomed into a powerful force in the world of conflict resolution. The goal of this special issue has been to examine the state of collaborative practice today, where some leading collaborative practitioners believe we are heading in the near future and, now, I offer some of my predictions of where the field may be twenty years from now, in It is clear to everyone who is touched by collaborative practice that it is truly a very effective way to help our clients and that the future is wide open to build and improve collaborative practice in directions that may seem impossible to fathom in Here are twelve ways in which collaborative practice will evolve in the next two decades:fcre_ I. CLIENTS WILL DEMAND COLLABORATIVE PRACTICE AND MEDIATION FROM PROFESSIONALS AND MAKE IT THEIR FIRST CALL IN TIME OF CONFLICT Being a rights-based and competitive society, both the public and the legal profession have encouraged the expanded use of lawyers to remedy and redress problems and damages. Historically, when in conflict, people generally have made their first call to a lawyer with the expectation of having the justice system vindicate the situation. The consequence of this custom has been to create lawyer domination of disputes, often with a legalistic and narrow approach to resolving those disputes. 3 However, as collaborative law has clearly demonstrated, the public is becoming more aware of the downsides of litigation with its emotional and financial costs that can potentially destroy the disputants and their children. The explosive growth of collaborative practice shows that the public, when aware, will often choose a nonadversarial option and will likely receive better results in the end. With consumer use of collaborative practice, mediation, other new paradigm 4 client centered services, in twenty years, I predict that the first call of a person in legal trouble will more often be to a mediator, collaborative law attorney or other non-litigation professional. Forty years of collaborative practice will have earned the respect and confidence of the public so that it will be a top process choice of both consumers and recommending professionals. II. THE UNIFORM COLLABORATIVE LAW ACT WILL BE ENACTED IN MOST STATES AND VERSIONS OF IT WILL BE THE LAW IN JURISDICTIONS OUTSIDE OF THE UNITED STATES Uniform Laws not only provide templates for individual states to consider the adoption of a uniform law, in itself provides legitimacy for new forms of legal practice. 5 As more and more jurisdictions pass legislation with amended versions of the UCLA there will be a logrolling effect Correspondence: FAMILY COURT REVIEW, Vol. 49 No. 2, April Association of Family and Conciliation Courts

29 Mosten/THE FUTURE OF COLLABORATIVE PRACTICE 283 momentum will build for collaborative law as policy with courts, professionals, and the public giving support for that policy. 6 The Prefatory note authored by Professor Andrew Schepard, Reporter of the Uniform Law and Editor of this Journal, is probably the best statement of the conceptual and legal underpinnings of collaborative law. 7 III. COLLABORATIVE PRACTICE WILL BE INCORPORATED INTO THE MAINSTREAM OF THE LEGAL PROFESSION In addition to being an alternative to trials, collaborative practice will become an integral part of ancillary court programs, education for litigants, 8 and lists of collaborative practitioners will be available for litigants at consumer self service centers and client libraries within the courthouse. 9 The momentum built by the ABA Ethical Opinion 10 conditionally approving collaborative law as an ethical practice (if based on informed consent) and the passage of the UCLA will lead to specific professional rules of conduct on both national and state levels involving collaborative practice. While such model rules have currently been promulgated primarily within the collaborative community, just as unbundling legal services 11 and mediation 12 have been the subject of rule-making by the organized legal profession, collaborative practice will follow suit. The consideration and promulgation of such rules by the ABA and local bar associations and law societies will further legitimize collaborative practice and make it more accountable. Texas has already established a separate state bar section on collaborative practice rather than have collaborative practice as a sub-section or committee of a family law or dispute resolution section. 13 In 2030, the state or nation without an independent section for collaborative practice will be the exception. Family lawyer education and specialization will include increased training in negotiation, mediation, collaborative law, and other innovative alternatives. Just as the Law Society of New South Wales 14 has developed a specialization in dispute resolution (in addition to substantive areas such as family law, tax, etc), most bar associations and law societies will develop similar specialization programs that will include collaborative law by To prepare future lawyers, every law school will have at least a survey course on collaborative practice. 15 Most schools will have companion courses in unbundled legal services, lawyer as peacemaker 16, interdisciplinary service delivery, and advanced courses in traditional subject areas (family law, trial advocacy, client counseling, business planning) that will feature modules of collaborative practice. IV. MENTAL HEALTH AND FINANCIAL PROFESSIONAL BODIES WILL INCORPORATE COLLABORATIVE PRACTICE INTO THEIR RULES OF PROFESSIONAL CONDUCT AND BE PART OF PROFESSIONAL EDUCATIONAL CURRICULUM As an interdisciplinary form of service delivery and opportunity for new professional opportunities, collaborative practice will become part of the professional education and license qualification for mental health and financial professionals. Just as mediation training qualifies for continuing educational credit for these professionals in many jurisdictions, collaborative practice courses will be long approved for continuing educational credit by In the mental health field, in addition to traditional education for future therapists and social workers, students will need training to perform professional roles such as: neutral or party collaborative coach; neutral collaborative child specialist; neutral sole mediator; interdisciplinary co-mediator; coach for parties in mediation; divorce coach for pro se litigants; parenting comprehensive or mini-evaluator; special master; parenting coordinator; and therapist specializing in helping families go through divorce and competently advise clients about legal process, including collaborative law. 17 Mental health professionals can join lawyers and other professionals in playing this triage

30 284 FAMILY COURT REVIEW role in their private offices. Mental health professional and educational bodies will also sanction these new services to qualify for required supervision hours necessary for licensure. 18 Financial professionals will also modify their coursework to prepare them to work in the new paradigm world. In addition to learning the traditional skills of auditing, tax preparation, and in-house business accounting, in 2030, financial students and professionals will be trained to perform these emerging roles: neutral forensic in collaborative practice and mediations; divorce appraisers of ongoing businesses; arbitrators of divorce family issues; expert witnesses in divorce matters; divorce tax specialist; and mediators and interdisciplinary co-mediators. 19 V. COURTS AND LEGISLATURES WILL RECOGNIZE COLLABORATIVE PRACTICE AND MEDIATION AS PRIMARY MODELS OF DISPUTE RESOLUTION AND ADOPT A SERIES OF INCENTIVES TO UTILIZE COLLABORATIVE PRACTICE In the past twenty years, mediation has morphed from being considered alternative dispute resolution to appropriate dispute resolution (sometimes consensual dispute resolution) to dispute resolution. In the Family Court of Australia, alternative dispute resolution (ADR) is litigation, arbitration, or other top-down processes. Primary dispute resolution (PDR) includes mediation, collaborative practice, negotiation, and other bottom-up consensual processes. By 2030, most jurisdictions will have adopted the Australian model of PDR. In addition to being an alternative to courts, collaborative practice will become an integral part of court programs, education for litigants, and lists of collaborative practitioners will be available for litigants at consumer self service centers 20 and client libraries within the courthouse. 21 The innovative reforms currently in place to encourage use of collaborative law will become commonplace. Already, a few jurisdictions are taking steps to promote collaborative practice and mediation with the goal of easing the court load and helping the public resolve conflicts in a faster and less painful process. For example, now, in 2010, in the Los Angeles Superior Court every litigant is sent a letter from the Presiding Judge of the Family Law Department encouraging the use of collaborative practice and mediation. 22 The Presiding Judge handles all collaborative law matters (signing of Participation Agreement with Qualification Clause is required 23 ) so that parties are not required to attend standard status conferences and other court proceedings while the collaborative process is ongoing, and parties who complete their settlements within the collaborative process are afforded expedited processing of their judgments. There are incentives in place already to reward those parties who use these methods of dispute resolution and the movement towards increasing these incentives is very positive momentum to increase the responsiveness of the court system to the needs of its citizens. Additionally, the societal encouragement to expand the dispute resolution process beyond adversarial litigation will continue to be implemented in the courts as they will continue to favor collaborative practice and mediation and other processes that empower litigants to take control over the process of resolving legal disputes. Future reforms that will be part of the collaborative landscape in 2030 may include 24 : A. Assignment of collaborative law matters will generally be made to one court with a trained settlement judge who can monitor cases and keep them out of the general litigation system. B. Collaborative cases will be identified as such in court filings with criteria developed for such identification by court staff. C. Attorney fee awards will be given credit if counsel suggests or agrees to collaborative law in appropriate cases. Similarly, those parties that refuse to participate in collaborative practice without a reasonable basis will be taxed in respect to attorney fees incurred during litigation. D. Just as there is mandatory mediation for many custody and visitation issues, judicial officers will be given authority to order cases into collaborative law. Such collaborative practice will be generally paid by the parties using these services with relief In forma pauperis for those parties who can demonstrate an inability to pay.

31 Mosten/THE FUTURE OF COLLABORATIVE PRACTICE 285 E. Traditional cases in the system (including those involving post-decree issues) involving self represented litigants will be subject to judicially initiated crash collaborative settlement teams of collaborative lawyers, mental health professionals and financial professionals who will meet with the parties either in the courthouse or in private offices. F. Just as courts have mandatory parenting education programs, courts and legislatures will fund and promote mandatory process education for litigants that will include major segments on collaborative practice. G. Judges, family court services, and clerks will routinely participate in court sponsored training for interest based negotiation, mediation, collaborative practice, and other skills of consumer service to improve legal access. 25 H. Collaborative practice organizations will have longstanding positive relationships with the bench for increased understanding on collaborative innovations put into place within the court system and needs of the courts to which the collaborative community might contribute. I. Courts, legislatures, and other government bodies will have established sophisticated programs of generic advertising and consumer education 26 for more public and professional understanding and use of collaborative practice. J. Courts, government and professional bodies will have collaborative practice Impact Reviews of Laws and Policies 27 to assure consistency of such laws and policies with the goals of collaborative practice. VI. MEDIATION WILL BE AN ACCEPTED AND OFTEN USED FEATURE WITHIN COLLABORATIVE PRACTICE By 2030, the early power struggle and misguided conflict between mediation and collaborative practice will be a faded footnote in peacemaker history. Mediation will be used routinely in collaborative practice with independent mediators joining the collaborative process and collaborative professionals being engaged by clients to support mediations. In addition, neutral facilitation for conflicts between members of the collaborative team will be standard protocol. Such facilitation will be conducted by team members themselves and/or by use of independent mediators. 28 Collaborative professionals will be required to undergo extensive mediation training. Such training will be mandated within the collaborative community by umbrella organizations and individual practice groups as well as by courts, professional bodies and legislatures that will have assumed a larger role in support and possibly regulation of collaborative practice. VII. REQUIREMENTS FOR INFORMED CONSENT NOW REQUIRED OF COLLABORATIVE PRACTITIONERS WILL BE REQUIRED OF ALL ATTORNEYS The emerging duty of lawyers to competently advise clients about alternatives that is currently in force in many jurisdictions 29 and that is incorporated in the UCLA for collaborative attorneys 30 will be an accepted professional obligation for all attorneys. In 2030, before filing initial court proceedings, lawyers representing litigants will be required in most jurisdictions to certify that their clients have been fully informed of the benefits and risks of mediation and collaborative representation. 31 VIII. COLLABORATIVE SERVICES WILL BE ROUTINELY UTILIZED BY THE POOR AND OTHER UNDERSERVED POPULATIONS At present, collaborative practice is largely limited to the wealthiest segment of American families. 32 Supported by the UCLA s understanding of the difficulty of the underserved to obtain substitute

32 286 FAMILY COURT REVIEW counsel if the collaborative process terminates, 33 by 2030 the benefits of collaborative practice will be more fully available to the poor and working poor. While the UCLA requires the involvement of two lawyers to qualify as collaborative law, over the next two decades new processes will develop under different names to encourage collaborative principles and procedures to be used when one party is pro se or has a limited scope lawyer who will not sign a collaborative participation agreement. Other proposals by Professor J. Herbie DiFonzo, seen in his Vision for Collaborative Law will become common practice in 2030, including: unbundling use of collaborative professionals so that fees can be reduced; 34 collaborative professionals will more readily refer parties to mediation when a single professional (sometimes supplemented by unbundled counsel) may be more affordable; and court programs utilizing collaborative processes will be part of the court systems in most jurisdictions. 35 IX. COLLABORATIVE PRACTICE WILL BE ROUTINELY USED OUTSIDE OF FAMILY LAW AND MOST LAW FIRMS WILL HAVE INTERNAL COLLABORATIVE AND SETTLEMENT COUNSEL DEPARTMENTS The current nascent efforts to extend the collaborative process to business, probate, personal injury, intellectual property and other non-family areas of the law will continue and grow over the next two decades. 36 Mediation consumers today differ in their preference for process or content oriented mediators. Yet whatever their style at the negotiation table, mediators are known as mediators. They may specialize in divorce or in environmental public policy issues, though they are all still called mediators. The same will be true for collaborative professionals by The values and perspectives that bind collaborative professionals will transcend areas of practice so that family collaborative professionals and non-family (civil) collaborative professionals will all be called collaborative professionals. Regardless of their areas of practice, different business models of practice will be viewed through the collaborative lens whether collaborative services are provided by sole practitioners working out of their homes or part of large law firms taking up several floors of urban office skyscrapers. Currently, in large corporate litigation, some businesses are retaining separate settlement counsel, 37 who are bound by a disqualification clause built on the family collaborative model. There are two tracks of such settlement counsel: single track and dual track. In the single track, the litigating lawyers stand down and create a litigation freeze while settlement counsel work with the parties directly. If no settlement is reached, the litigation counsel steps back in to resume the court proceedings. 38 In the dual track, the litigator and the settlement counsel work on separate tracks and assume that there are litigation-related issues that cannot await settlement efforts. This may occur early in the process, either because there are immediate legal issues that must be addressed or because the client simply wishes to proceed on all fronts without delay, or it may occur later in the litigation process when delay of the litigation process is not practical or not permitted by the court. 39 The model of settlement counsel will evolve and grow so that by 2030, corporate law firms that do not offer settlement counsel will be the exception and at a competitive disadvantage in the law firm marketplace. X. COLLABORATIVE PROFESSIONALS WILL UTILIZE PREVENTIVE SERVICES TO IMPROVE FUTURE RELATIONSHIPS AND AVOID FUTURE CONFLICT Collaborative practice has focused on resolving current disputes and conflicts. The future and unlimited marketplace for collaborative professionals is a preventive approach that will be used symptomatically and asymptomatically. 40 Symptomatic preventive planning is using the experience, pain, and cost of recent legal trouble to motivate clients to consider ways to avoid similar problems in the future. Asymptomatic legal prevention is working with clients to probe legal soft spots and take steps to prevent future conflict when no dispute is currently raging. 41

33 Mosten/THE FUTURE OF COLLABORATIVE PRACTICE 287 By 2030, it will be standard practice for collaborative professionals who aim to prevent future conflict to build in postsettlement scheduled meetings and assessments with parties who have an ongoing relationship. Collaborative professionals can encourage parties to consider meeting semiyearly or annually to discuss parenting and/or support agreements. Another asymptomatic approach is for the collaborative professionals to calendar executory settlement provisions or life cycle events for planned future discussion. 42 In the next twenty years, collaborative professionals will expand services to preventive rather than disputed matters. Building on the success and public acceptance of collaborative resolution of divorce, the public will seek this approach in working out premarital and cohabitation agreements, 43 forming a business, planning an open, surrogate, or step-parent adoption, gearing up for a construction project, or other matters involving continuing relationships. 44 XI. COLLABORATIVE PROFESSIONALS WILL MORE OFTEN BE FULL TIME PEACEMAKERS AND REFUSE ANY ENGAGEMENTS INVOLVING ADVERSARIAL LITIGATION Due to the youth of the collaborative movement that has not yet developed into a critical mass of profitable practice, most collaborative professionals are still litigating matters during the majority of their time despite the fact that the number of professionals who devote themselves to full time peacemaking is growing. 45 Just as specialization of peacemaking lawyering will be institutionalized within the profession, 46 so too will the trend of lawyers who eschew litigation and fill their professional time with direct profitable client peacemaking work such as collaborative practice, unbundled professional services, transactions involving continuing relationships, and confidential evaluative and consulting engagements. 47 While collaborative organizations such as IACP and most practice groups appreciate the need to accommodate both full time peacemakers and those that conduct a collaborative session on Monday morning and are in court on Monday afternoon, by 2030 Nancy Cameron s two-horse dilemma will evolve to collaborative organizations that require their members to be full time peacemaking. This may result in the development of a bifurcated legal profession which somewhat mirrors the British solicitorbarrister model with possibly three types of legal organizations in which collaborative professionals are members: general Bar Associations that permit all licensed attorneys regardless of their professional roles, traditional collaborative organizations that permit lawyers who both litigate and do collaborative work, and peacemaking lawyer organizations that require members to concentrate their training and service solely to non-adversarial processes. XII. COLLABORATIVE PRACTICE GROUPS WILL PROLIFERATE TO EVERY CONTINENT AND EACH GROUP WILL OFFER A MENU OF PRACTICE MODELS After twenty years of development, there are practice groups in eighteen countries reported by the International Academy of Collaborative Professionals. 48 Most of the growth outside of North America has occurred in the last five years. By 2030, not only will the number of countries dramatically increase, but also the explosion of collaborative professionals and diversity of practice groups will defy current accurate predictions. 49 The nature of the practice groups will also change significantly in the next two decades. Today, there are two basic models: open and closed. Open practice groups accept anyone who wishes to purchase membership but often have more restrictive policies of training and practice experience to be able to participate on website referral rosters. 50 Closed practice groups limit membership to build a shared and committed collaborative culture within the group as well as to maximize resources for shared marketing. 51

34 288 FAMILY COURT REVIEW Future practice group evolution will provide for single model groups, multi-model groups, and firms of collaborative professionals who generally only work with each other within set interdisciplinary teams and share income and expenses. 52 Other collaborative professionals will share an office but act as independent contractors permitting officemates to be members of different practice groups and different teams. 53 Membership in practice groups will also evolve significantly in the next twenty years. In addition to lawyers, mental health professionals and financial professionals (neutral and party coaches, child specialists, and treating therapists and social workers), such groups may be open to physicians, real estate and insurance professionals, mediators and dispute system designers, and other professionals interested in and committed to collaborative practice. XIII. CONCLUSION This article offers twelve predictions of ways in which collaborative practice will grow and flourish within the next twenty years. As in all predictions, these are guesses about how collaborative practice will develop based on past experience of the field s development, coupled with my personal vision for the future. The key to whether these predictions will come true may depend on the vision created by current collaborative professionals and those that choose that path in the years ahead. For over twenty years my inspiration in this context has been Tom Peters discussion of how vision works and such insight may also benefit the collaborative movement: A vision is inspiring A vision is clear and challenging and about excellence A vision makes sense in the marketplace and stands the test of time A vision must be stable but constantly challenged A vision is a beacon and controls your actions when all else is up for grabs A vision is aimed at empowering you first, and your clients second A vision prepares for the future, but honors the past; and A vision is lived in details, not in broad strokes 54 Peters criteria for the vision of Collaborative Practice may be the foundation for the baby steps necessary to build on collaborative practice s current foundation, to achieve the implementation and lessons from the research agenda proposed by John Lande 55 and others to help expand the reach of the field to increase its access to the underserved, to expand services offered within the collaborative umbrella, and to create impact of collaborative practice on professional service providers, on the institutions that support it, and for the public that we serve. 56 NOTES 1. Special gratitude and recognition for the inspiration of future visioning of the Oregon Task Force on Family Law Reform Commission (William Howe III) and the Oregon Supreme Court s ground breaking publication, Justice 2020 (Wallace Carson, Chief Justice). See William Howe III & Maureen McKnight, Oregon Task Force on Family Law: A New System to Resolve Family Law Conflicts, 33 FAM.& CONCILIATION CTS. REV. 173 (1995); see also J. Herbie DiFonzo, A Vision for Collaborative Practice: The Final Report of the Hofstra Collaborative Law Conference, 38 HOFSTRA L. REV. 569 (2009). My own desire to vision the future was influenced by my mentor, Professor Louis M. Brown ( ). In 1989, Professor Brown, the recognized Father of Preventive Law, crafted an Agenda for the Future with sixty-eight recommendations. Unpublished Agenda and Supporting Memoranda are in the author s possession and available upon request. 2. Woodrow Wilson, (last visited Nov. 26, 2010). 3. Leonard L. Riskin & Nancy A. Welsh, Is That All There Is? The Problem in Court-Oriented Mediation, 15 GEO. MASON L. REV. 863, 932 (2008) (commenting on the impact of lawyers and lawyer mediators in narrowing the problem definition and discussion court mediation settings to reflect lawyer perspectives).

35 Mosten/THE FUTURE OF COLLABORATIVE PRACTICE See FORREST S. MOSTEN, COLLABORATIVE DIVORCE HANDBOOK: HELPING FAMILIES WITHOUT GOING TO COURT (2009). 5. For an overview of the impact of the UCLA, see the special issue on the UCLA, by Hofstra Law Review and The Collaborative Review: 38 HOFSTRA L. REV. (Winter 2009); 11 COLLABORATIVE REV. (Summer 2010). 6. For a hint of how synergy from various sectors built the field of mediation, see Forrest S. Mosten, Institutionalization of Mediation, 42 FAM. CT. REV. 292 (2004). 7. The final version of the Uniform Collaborative Law Act (2010) can be found at ulc/ucla/2010_final.htm. 8. See Letter to Litigants, (last visited Nov. 26, 2010). 9. See FORREST S. MOSTEN, Mediation Legacy: The Family Law System of the Future, in THE COMPLETE GUIDE TO MEDIATION 373 (ABA 1997); Forrest S. Mosten, Southern California Mediation Association Conflict Resolution Library Fund, (last visited Nov. 26, 2010). 10. ABA Comm. on Ethics and Prof l Responsibility, Formal Op (2007). 11. See ABA Unbundling Resource Center, (last visited Feb. 11, 2011). This is the ABA s resource center maintained by the Standing Committee on the Delivery of Legal Services. This is the clearinghouse for links to a wide variety of materials on unbundling. See also MOSTEN, supra note 4; FORREST S. MOSTEN, UNBUNDLING LEGAL SERVICES (2000); Forrest S. Mosten, Unbundling Legal Services to Help Divorcing Families, in INNOVATIONS IN FAMILY LAW PRACTICE (Kelly B. Olson & Nancy Ver Steegh eds., Association of Family & Conciliation Courts 2008); Forrest S. Mosten, Unbundling of Legal Services and the Family Lawyer, 28 FAM. L.Q. 421, 449 (1994). 12. In his fall 2010 column as chair of the ABA Dispute Resolution Section, Wayne Thorpe outlined just a few of such developments in mediation: Model Standards of Conduct for Mediators (2005), Uniform Mediation Act (2002), Section of Dispute Resolution s Resolution on Good Faith in Mediation (2004), and Amended Model Rules of Conduct, especially Rules and 2.1. R. Wayne Thorpe, From the Chair, 17 DISP. RESOL. MAG. 2 (Fall 2010); R. Wayne Thorpe, From the Chair, Dispute Resolution Magazine 2888 (Fall 2010). 13. Harry Tindall, a national leader in collaborative practice, reports the following: The Collaborative Law Section, State Bar of Texas, was created this spring by a unanimous vote of the State Bar Board of Directors. Being part of the state bar has many advantages. We are now at the table along with other sections and we are viewed as real lawyers. We have the marketing assistance of the bar in creating websites, blast and assistance in continuing education programs. Kevin Fuller, partner in the largest family law firm in Texas, is Chair of our section. Posting of Harry Tindall, [email protected], to [email protected] (July 25, 2010) (on file with author). 14. See Dispute Resolution Evolves from Mediation, LAW SOC Y J. 19 (2010). A similar proposal has been made by this author for consideration in the United States. MOSTEN, supra note 4, available a productcd ,desccd-download.html (last visited Nov. 26, 2010). 15. The Family Law Education Reform Project has already discussed such law school curriculum and produced template modules for use by law professors. See Forrest S. Mosten, The Potential of the Family Law Education Reform Project for Family Lawyers, 45 FAM. CT. REV (2007); Mary E. O Connell & J. Herbie DiFonzo, The Family Law Education Reform Project, 44 FAM. CT. REV (2006). 16. See Syllabus for Hamlin School of Law, F.S. Mosten, Institutionalizing Peacemaking in Society and Within the Legal Profession (2009), (last Visited Nov. 26, 2010). 17. In his groundbreaking concept of the Open Door Courthouse at the 1976 Pound Conference, ADR legend, Professor Frank Sander envisioned a triage system in which court consumers would select the appropriate process option that would best fit their case and their personal needs. Frank E.A. Sander, Varieties of Dispute Processing, 70 F.R.D. 111 (1976). 18. For example, in California and many other jurisdictions, to qualify for a license, after fulfillment of required course credits and successful passing of written and oral exams, clinical psychologists, social workers, and family therapists must prove completion of 3,000 hours of supervised client work (the number of required hours and inclusion of an oral exam or other supplemental exams [(i.e. Professional Ethics) differ among jurisdictions). 19. In some Collaborative Full Team Models (see article by Pauline Tesler 239 in this issue), Collaborative Financial Neutrals assume a facilitative mediator role within the professional team who otherwise might have formal alignment with a party. Financial Professionals could benefit from conflict resolution education and training to competently fulfill this neutral role. 20. See MOSTEN, supra note 9, at 373 (describing the innovative consumer reforms of the Maricopa Superior Court). 21. See Southern California Mediation Association, Forrest S. Mosten Conflict Resolution Library Fund, www. scmediation.org (last visited Jan. 8, 2011). 22. The full letter in English and Spanish can be found in MOSTEN, supra note 14, at Appendix A: Additional Resources. 23. For the template for such Collaborative Stipulation, see id., at Document # My thanks to Judge Mark Juhas of the Los Angeles Superior Court for his contributions in discussions with me in respect to the following future court reforms. Any criticism of these predictions should be directed solely to me and Judge Juhas is released and held harmless therefrom. 25. See Forrest S. Mosten, Mediation and the Process of Family Law Reform, 37 FAM. & CONCILIATION CTS. REV. 429 (1999).

36 290 FAMILY COURT REVIEW 26. For a 2011 model of such public support of conflict resolution advertizing, see Justice Matters, Maryland Access to Justice Commission, (last visited Jan. 8, 2011); see also Center for Conflict Resolution at Salisbury University, Honorable Robert M. Bell, (last visited Jan. 8, 2011). 27. For a similar proposal for Settlement Impact Studies within family courts, see Mosten, supra note 25, at At a minimum, collaborative practice and mediation will intersect in seven ways: 1. Advise clients about mediation at the initial consultation, and compare and contrast it with collaborative law. 2. If your client chooses mediation, you can provide unbundled professional services with a collaborative perspective outside mediation sessions. 3. If your client chooses mediation, review and draft agreements reached in mediation and negotiate further for clients outside mediation sessions. 4. If your client chooses mediation, you can provide collaborative coaching and representation at the mediation session itself. 5. Bring in a mediator at the beginning of the collaborative process. 6. Bring in a mediator if problems or an impasse develop during the collaborative process or if the collaborative process is suspended or terminated. 7. Bring in a mediator to resolve conflicts between professionals. Mosten, supra note 14, at See also Fred Glassman, Medi-Collab: Making Room at the Table for Creative Lasting Resolution, 9 COLLABORATIVE REV (2007). 29. ROBERT F. COCHRAN, JR. ET AL., THE COUNSELOR-AT-LAW:A COLLABORATIVE APPROACH TO CLIENT INTERVIEW- ING AND COUNSELING (Lexis Nexis 2d ed., 2009). See THOMAS L. SHAFFER & ROBERT F. COCHRAN, JR., LAWYERS, CLIENTS, AND MORAL RESPONSIBILITY 21 (West, 2d ed. 2006); Robert F. Cochran, Jr., Educating Clients on ADR Alternatives: The Rules of Professional Conduct Should Require Lawyers to Inform Clients About ADR,L.A.LAW., Oct. 2002, at 52; Robert F. Cochran, Jr., Professional Rules and ADR: Control of Alternative Dispute Resolution Under the ABA Ethics 2000 Commission Proposal and Other Professional Responsibility Standards, 28 FORDHAM URB. L.J. 895, (2001); Forrest S. Mosten & John Lande, The Uniforn Collaborative Law Act s Contribution to Informed Client Decision Making in Choosing a Dispute Resolution Process, 38 Hofstra L. Rev. 611, 617 n.14 (2009). 30. See UCLA 14(2). 31. See John Lande & Forrest S. Mosten, Collaborative Lawyers Duties to Screen the Appropriateness of Collaborative Law and Obtain Clients Informed Consent to Use Collaborative Law,25OHIO ST.J. ON DISP.RESOL. 347 (2010); Mosten & Lande, supra note 29, at See DiFonzo, supra note 1, at See UCLA 10b; Di Fonzo, supra note 1, at See article by the Cypress Practice Group of Seattle, Washington at p. 249 in this issue. 35. See DiFonzo, supra note 1, at See International Academy of Collaborative Professionals, Civil Collaborative Practice, collaborativepractice.com/_t.asp?m=2&t=civil (last visited Jan. 8, 2011). See generally SHERRIE ABNEY,AVOIDING LITIGA- TION: A GUIDE TO CIVIL COLLABORATIVE LAW (2005). See also Mosten, supra note 22, at See Kathy A. Bryan, Why Should Businesses Hire Settlement Counsel, 2008 J. DISP.RESOL Bryan offers her own agenda for future dialogue on Settlement Counsel: 1. A range of options allowing flexibility in the process, such as borrowing from Leonard Riskin s grid concept to refine the range of collaborative law options. 2. Exploring the importance of the disqualification provision in the commercial context, including ethical considerations. 3. More settlement counsel practitioners who are trained in interest-based negotiation and mediation advocacy skills. 4. The use of tiered dispute resolution clauses with an initial step that includes some elements of collaborative law, such as the equivalent of a four-way meeting with settlement counsel before the next step, which could be mediation, arbitration, or filing suit. 5. Using different techniques with settlement counsel such as: a. For a range of matters within a business. Often settlement counsel can see patterns among classes or types of cases that allow them to maximize settlement opportunities. b. Unilaterally. When opposing counsel refuses to engage parallel settlement counsel, even one side s settlement counsel can effectively negotiate directly with litigation counsel. c. With and without the disqualification provision. The pure form of collaborative law is not always necessary. d. With alternative fee arrangements and other economic incentives. Many settlement counsel are adept at using creative fee arrangements with incentives since they are confident that the overall transaction cost will be lower with early and effective settlements. e. Designating and developing a modified settlement counsel position, where appropriate, on in-house legal staffs. In-house counsel frequently view themselves as settlement counsel and, when they can be objective about the matter, can be highly effective in that role. 6. More defined information exchange procedures applicable to business settings. 7. Client education on preventive legal counseling and interest-based negotiation.

37 Mosten/THE FUTURE OF COLLABORATIVE PRACTICE Continuing to increase awareness about educational institutions tendency to emphasize adversarial training. 9. Promoting graduate legal and business curriculums on problem solving and collaborative methods of dealing with conflict. Id., at Tom Collier of the Washington DC law firm Steptoe and Johnson, has developed a Settlement Counsel group at his firm that specializes in this collaborative practice model. Remarks of Tom Collier at Symposium of Innovative Lawyering at the University of Missouri School of Law (Professor John Lande, Convenor), October O. RUSSELL MURRAY, THE MEDIATION HANDBOOK: EFFECTIVE STRATEGIES FOR LITIGATORS (2006). 40. See THOMAS D. BARTON, PREVENTIVE LAW AND PROBLEM SOLVING: LAWYERING FOR THE FUTURE (2009); LOUIS M. BROWN & EDWARD DAUER, PLANNING BY LAWYERS: MATERIALS ON A NONADVERSARIAL LEGAL PROCESS 309 (1978). See also Bruce J. Winick et al., Preface a New Model for the Practice of Law, 5PSYCHOL. PUB. POL Y & L. 795, (1999). 41. Louis M. Brown and other preventive scholars rely on a more developed medical model as an analogy for legal prevention. Just a few of his articles: Legal Autopsy, 39 J. AM. JUDICATURE SOC Y 47 (1955); Family Lawyer and Preventive Law, 35 CAL. ST. B.J. 43 (1960); Preventive Medicine and Preventive Law: An Essay That Belongs to My Heart, 11 LAW MED. & HEALTH CARE 220 (October 1983). To explore use of symptomatic preventive legal tools such as Protocols for Future Dispute Resolution and Methods to Assure Compliance with negotiated agreements, see Forrest Mosten, Lawyer as Peacemaker: Building a Successful Practice Without Ever Going to Court, 43 FAM. L.Q. 389 (2009). 42. This is based on the preventive law maxim that a file never closes and when clients leave your office, they should know when lawyer and client will next meet and how the meeting will be arranged and by whom. Parties can anticipate the need for meetings prior to the date the family residence has been scheduled to be sold, when children obtain the age to change schools or begin driving, or when spousal support is set to end so that child support and other issues may need refinement. Similar preventive discussions can follow successful Collaborative Settlement in nonfamily matters. 43. See Sandra M. Rosenbloom & Judith C. Nesburn, Isn t It Unromantic: Collaboratively Negotiating Pre and Post Nuptial Agreements, 10 COLLABORATIVE REV. 18 (2008); MOSTEN, supra note 4, at To support this preventive role, more collaborative professionals will establish client libraries in their offices to offer preventive client education. A client library is a collection of consumer-friendly books, DVDs and videos, audiotapes, brochures, and other resources. It can be the clients home in the collaborative professional s office in which clients draft their own documents, make private telephone calls to family members or other support persons, or just have a private cry. See MOSTEN, supra note 4, at ; FORREST S. MOSTEN,MEDIATION CAREER GUIDE:ASTRATEGIC APPROACH TO BUILDING A SUCCESSFUL PRACTICE (2001). 45. The inner conflict of balancing collaborative and litigative professional lives has been likened to one rider trying to ride two horses at the same time. See NANCY CAMERON, COLLABORATIVE PRACTICE: DEEPENING THE DIALOGUE 66, 97 (2004). 46. See supra note See Mosten, supra note International Academy of Collaborative Professionals, Collaborative Practice Groups, com/_t.asp?m=7&t=practicegroups (Last visited Nov. 26, 2010). 49. With more reporting of practice group activity such as the Cypress Practice Group at p. 249 in this issue, such modeling alone will be a catalyst for growth of the field. 50. Proponents of the open membership model stress the nonelitist nature of these groups and believe that opening up membership will enroll more professionals who are eager to learn about collaborative practice. The goal is to create more momentum in the community and generate fresh ideas that improve the practice group as well as attract more membership dues to the practice group treasury. MOSTEN, supra note 4, at Id. at The world s leading model and recipient of the 2010 ABA Lawyer as Problem Solver Award for Organizations is the Boston Law Collaborative which offers a variety of services and reports staggering growth, (last visited Nov. 26, 2010). 53. See Collaborative Alliance, a floor of offices in Edina, Minnesota, which many different collaborative professionals call home. They share offices and resources but not income. They are also open to work in various models with a variety of professionals. See (last visited Nov. 26, 2010); MOSTEN, supra note 4, at TOM PETERS, THRIVING ON CHAOS: HANDBOOK FOR A MANAGEMENT REVOLUTION (1987). 55. See John Lande, An Empirical Analysis of Collaborative Practices, p. 257 in this issue. 56. I started making predictions for the legal profession in 1972 when Steven Meyers, Len Jacoby, and I opened the first legal clinic in the United States. At that time the Beatles were the rage and we could not fathom what the legal field would look like when I m 64. Now that I am 64, I look forward to writing an update on my current predictions in Forrest S. Mosten is a collaborative lawyer and mediator who has been in private peacemaking practice in Los Angele since He balances his professional time by serving as an adjunct professor of law at UCLA and keynotes conferences and presents trainings worldwide. He is the author of four books and numerous articles in the areas of collaborative practice, mediation, unbundling legal services, building profitable professional practices, expanding legal access, and peacemaking. He is a frequent contributor to Family Court Review (FCR) and this is the third FCR special issue for which he has been guest editor.

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45 Mosten Mediation and Collaborative Training 9401 Wilshire Blvd 9th Floor, Beverly Hills, CA Phone: Fax: Collaborative Family Law Council of Florida COLLABORATIVE LAW IN 2033 Forrest (Woody) Mosten What is your key central life core value and your best personal attribute and how are they incorporated into your Collaborative work? What peacemaking professional services do you offer to augment your Collaborative Practice? What is one new peacemaking step that you intend to incorporate into your work prior to September 1, 2013? Copyright Forrest S. Mosten, 2013 (Adapted from, Collaborative Divorce Handbook (2009), "Lawyer as Peacemaker", (Family Law Quarterly, Fall 2009), Mediation Career Guide (2001), and the Future of Collaborative Law (Family Court Review, January, 2011)

46 Settling Collaborative Divorce Cases with Mediation By Teresa F. Parnell, Psy.D. Audrey Simmons, CPA Nancy S. Weber, Esq. Samuel J. Weiss, Esq.

47 Advanced Negotiation: Understanding and Using Team Dynamics in Collaborative Practice By Caroline Black Sikorske, Esq. Deborah O. Day, Psy.D. Nancy Harris, Esq. Mike Lewis, CPA, ABV, CFF, CVA Adam Magill, MBA, AVA, CBA, CFFA Lana M. Stern, Ph.D.

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49 Caroline Black Sikorske, Esq. Deborah O. Day, Psy.D. Nancy Hutcheson Harris, Esq. Michael E. Lewis, CPA, ABV, CFF, CVA Adam T. Magill, MBA, CBA, CVA, CFFA Lana M. Stern, Ph.D.

50 What does the mental health professional bring to the team dynamic? Deborah O. Day, Psy.D. Lana M. Stern, Ph.D. The Lawyer s Influence on the Collaborative Team Dynamic Caroline Black Sikorske, Esq Nancy Hutcheson Harris, Esq. What is the role of the financial neutral in creating and supporting healthy group dynamics? Michael E. Lewis, CPA, ABV, CFF, CVA Adam T. Magill, MBA, CBA, CVA, CFFA

51 Deborah O. Day, Psy.D. Lana M. Stern, Ph.D.

52 THE NEUTRAL MENTAL HEALTH PROFESSIONAL MHPs bring a specific set of dynamic skills to the Collaborative process Their role is multi-faceted, psychological, but not therapeutic Their neutral stance creates safety and allows trouble-shooting and interventions that can often save the process

53 SPECIAL SKILLS Understanding the dynamics of human behavior and interactions. Understanding the main functions of the brain and what drives behaviors. Understanding how the brain works in a negotiation.

54 Teaching/modeling appropriate communication skills. Ability to observe and interpret couple s conflicted communication style and reframe into more appropriate interaction. A thorough knowledge of child development to assist with the Parenting Plan

55 DIVORCE IS A LEFT-BRAIN PROCESS IT INVOLVES PLANNING FOR THE FUTURE DIVIDING MARITAL ASSESTS CREATING A TIME-SHARE PARENTING PLAN READ,WRITING AND SIGNING A MULTITUDE OF LEGAL DOCUMENTS CRUNCHING NUMBERS AND ANALYZING DIFFERENT FINANCIAL SCHEDULES.

56 LEFT VS. RIGHT BRAIN DIFFERENT FUNCTIONS LOGIC VS. RELATIONSHIPS CONSCIOUS VS. UNCONSCIOUS PLANNING VS. INTUITION SYSTEMATIC VS. SPONTANIOUS

57 THERE S ONLY ONE PROBLEM PEOPLE SEEKING A DIVORCE HAVE A LEFT AND A RIGHT SIDE OF THEIR BRAIN AND MOSTLY AT LEAST WHEN THEY WALK IN TO YOUR OFFICE THE RIGHT BRAIN IS IN CONTROL

58 UNDERSTANDING HOW OUR BRAIN WORKS WHAT DRIVES THE BEHAVIOR OF OUR CLIENTS, EXPECIALLY IN A NEGOTIATION, CAN HELP US THE PROFESSIONALS - OPTIMIZE THE DIVORCE PROCESS. WE CAN HELP OUR CLIENTS MAKE GOOD, LOGICAL DECISIONS AND COME TO A SUCESSFUL AND SATISFACTORY CONCLUSION

59 THE AMYGDALA HIJACK The amygdala hijack is a phrase coined by Daniel Goleman in 1995 that describes this highly emotional state in which anxiety, fear and anger take over and disable a person s ability to be logical or reasonable.

60 STRESS RESPONSE These responses are part of a fight-or-flight survival kit, and once the stress has passed, these should subside For people under the unremitting stress of a divorce, this response never quite switches off leaving sugar levels unregulated, high blood pressure, increased risk of blood clots, depressed sex drive and an immune system buckling under the strain. Prolonged exposure to stress hormones affect the brain by altering the structure of neurons, their connections, which in turn can influence behavior and change hormonal processes.

61 FIGHT/FLIGHT RESPONSE The human brain is programmed to send out a message through the neurons to fight or flight when danger is perceived. This is an automatic survival mechanism found in the primitive part of the brain. Danger can be both subjective and objective when perceived by the person, but the bodily response is still the same. Divorce and visiting the attorney may both be perceived as danger triggering this fight/flight response. Often this is the emotional state that attorneys encounter when first meeting their clients or later during meetings.

62 TRANSFERENCE and COUNTERTRANSFERENCE TRANSFERENCE a phenomenon that occurs when the client begins to respond to the professional as if the professional was a significant person in the client s life COUNTER-TRANSFERENCE - a phenomenon that occurs when the professional begins to respond to the client as if the client was an important person in the professional s life

63 Parallel Process A replication of the couple s conflict can be acted out between the attorneys, MHP or financial professional. It is a form of transference/counter transference which can result in positional, thus unproductive negotiation in a collaborative process. (The attorneys become the fighting couple). It can also have a positive effect when the attorneys model collaboration, cooperation, compromise and good communication skills.

64 THE BRAIN 1. A complex, adaptive system 2. The brain is social. 3. Emotions are critical as the brain looks for information. 4. Every brain is uniquely organized.

65 MAXIMIZING LEARNING THE IMPORTANCE OF THE PROCESS >We learn best from information that is presented first >Order of the first meeting >Second best learning comes last. >Homework >Least remembered information comes in the middle.

66 MAXIMIZING LEARNING 1. Physical movement is critical. 2. Laughter stimulates the frontal lobe of the brain. Laughter/humor bonds people. 3. Attention span: Learning has limits and those limits impact group processes.

67 TRUST IN THE PROCESS 1. The first level of trust is developed when the attorney sells the process: Individual trust 2. Next is establishing trust with the process facilitators. Individual trust again. 3. Third opportunity is the first team meeting. Group trust begins. 4. Complex trust between and among all members.

68 PRACTICAL IMPLICATIONS 1. Members have different strengths and skill levels. 2. Synergy of the Group. 3. Rapport building within the team. 4. Social skills of each member.

69 JUST A WORD ABOUT PERSONALITY DISORDERS There may be an impairment in the group dynamics when one individual has a personality disorder because of their emotionality, impulsivity, poor boundaries and poor interpersonal functioning, lack of empathy or disordered thinking. Their pleasure is the chaos they create.

70 GROUP DYNAMICS 1. Respect each person s uniqueness. 2. Do not compromise the team goals. 3. Establish boundaries and work within those boundaries.

71 PITFALLS 1. Vocal vs. quiet attorney or client (power imbalance). 2. When a member is disruptive. 3. When a client turns on their attorney. 4. When a neutral turns on attorney or one of the participants. 5. When there is a lack of buy in by one member of the team.

72 NOW WHAT? Respect for the client and the team dynamic. Does the group dynamic modify or motivate the team? What are the strategies that return us to the group process?

73 Note from Collaborative Attorney after a meeting: It was a learning experience for me to appreciate that we would not and could not solve the living situation at the table yesterday. We are all so accustomed to being fixers and thinking that once the problem is identified and the options put out there that the problem should and must be solved and that the clients need and expect resolution from us. You correctly identified that they were not ready and that it was not ours to drive to the finish line and that further massaging of the problem would not be productive in that regard. Chalk it up as another reason to ALWAYS have a mental health neutral at every meeting and in every case. Letting them sit in their discomfort was truly the way to go.

74 Caroline Black Sikorske, Esq Nancy Hutcheson Harris, Esq.

75 COLLABORATIVE LAWYERS ARE LEADERS In 1976, Derek Bok, the former Dean of Harvard Law School and former President of Harvard University reflected on the significant events of the Pound Conference and opined: "Over the next generation, I predict, society's greatest opportunities will lie in tapping human inclinations towards collaboration and compromise rather than stirring our proclivities for competition and rivalry. If lawyers are not the leaders in marshaling cooperation and designing mechanisms that allow it to flourish, they will not be at the center of the most creative social experiments of our time."

76 Lawyers as great as we are do not know Everything and do not have All skills & expertise LISTENING EMPATHY

77 AND Credibility Civility Confidence Curiosity Competitive Spirit

78 Yes, lawyers still advocate on behalf of their clients: Advise clients of their legal rights; Identify information and documents needed to evaluate, assess, and resolve issues; Ensure any settlement term is compliant with law, valid and enforceable. Orchestrate a compromise that meets your client s priority interests.

79 We have learned Interest-based discussions work better than positional bargaining. Clients often find that they share more interests than they had realized. Interest-based negotiation frees clients to work toward resolution that addresses everyone s needs and often results in acts of generosity. Effective collaborative lawyers reframe positions into interests.

80 The Wheels of the Collaborative Process Full Group Meetings Agendas & Minutes Outside Meetings Accountability

81 BALANCING ACT FOR COLLABORATIVE LAWYERS Advocating for client v. advocating for consensus

82 BALANCING ACT FOR COLLABORATIVE LAWYERS Advocating for client v. advocating for consensus

83 ADVOCATING FOR CLIENT Collaborative lawyer is not neutral Collaborative lawyer must represent client s interests

84 ADVOCATING FOR CLIENT Ethics opinion issued by ABA endorses collaborative law if lawyers advises the client of the benefits and risks of participation in the collaborative law process. The lawyer is still bound by the rules of professional conduct, including the rules of competence and diligence.

85 ADVOCATING FOR CLIENTS Attorney client confidentiality rule 4-1.6: Revealing confidence or secret of client, using confidence or secret of client to detriment of client.prejudicing client during course of professional relationship warrants reprimand. The Florida Bar v. Brennan, 377 So. 2d 1181 (1979).

86 ADVOCATING FOR CONSENSUS Florida law is a guidepost for fair settlement and resolution of family law issues. But does collaborative law and interests of the parties supercede the law?

87 ADVOCATING FOR CONSENSUS Professionals Call prior to entire team meeting: What can and should be shared

88 ADVOCATING FOR CONSENSUS Must establish a rapport with the other side Must act as a resource for the team

89 ADVOCATING FOR CLIENT Managing unreasonable expectations: use of team quiet client or client who is uncomfortable in group setting

90 ADVOCATING FOR CONSENSUS Collaborative lawyers do not take on the client s fight; watch out for old trial habits Issues to tread carefully: dissipation, social disease, girlfriend/boyfriend

91 SAFETY NET Important to set client s Goals at the very beginning of the Process and reiterating at every stage

92 Michael E. Lewis, CPA, ABV, CFF, CVA Adam T. Magill, MBA, CBA, CVA, CFFA

93 Walking the neutral line Maintain group strength and integrity when Individual meetings Settlement option discussions Reactions to unreasonableness of another professional or party

94 Financial neutral procedure flowchart

95 Financial neutral procedure flowchart, con t

96 Bridging the Gaps Refining Information

97 Bridging the Gaps Business Valuation

98 Bridging the Gaps Forensic Review

99 Bridging the Gaps Process Completion Expectation

100 Other precautions Avoiding perceived alliances Working with both parties for full financial comprehension Imbalanced knowledge, education, expertise Distrust Need for forensic accounting Full disclosure?

101 When the rubber meets the road how the neutrals and professionals work together in

102 Collaborative Law and Domestic Violence - Assessing the Risks and Benefits By Debra K. Carter, Ph.D. Nina M. Zollo, Esq.

103 COLLABORATIVE LAW & DOMESTIC VIOLENCE: Assessing Risks & Benefits Debra K. Carter, Ph.D. & Nina Zollo, Esq. Collaborative Family Law Council of Florida Tampa, FL May 17, 2013

104 Why an Institute on Domestic Violence? Prevalence: FDLE reported 111,681 domestic violence offenses in 2011, with 23,394 of those offenses perpetrated by the spouse of the victim. DCF reported that from July 1, June 30, 2012, Florida certified domestic violence centers sheltered 15,997 victims and children, and provided outreach services to 36,398 victims and children

105 Goals of Institute Provide knowledge and tools to assist you in screening for and understanding the dynamics of domestic violence to Identify those cases that are not appropriate for the collaborative law process Implement appropriate safety and other interventions in the collaborative law process when there is domestic violence

106 Collaborative Law and Domestic Violence Is the collaborative law process appropriate for parties with a history of domestic violence? What do the experts and practitioners say?

107 Uniform Collaborative Law Act Section 15 Coercive or Violent Relationship (a) Before a prospective party signs a collaborative law participation agreement, a prospective collaborative lawyer must make reason inquiry whether the prospective party has a history of a coercive or violent relationship with another prospective party.

108 Uniform Collaborative Law Act (b) Throughout a collaborative law process, a collaborative lawyer reasonably and continuously shall assess whether the party the collaborative lawyer represents has a history of a coercive or violent relationship with another party

109 Uniform Collaborative Law Act (c) If a collaborative lawyer reasonably believes that the party the lawyer represents or the prospective party who consults the lawyer has a history of a coercive or violent relationship with another party or prospective party, the lawyer may not begin or continue a collaborative law process unless:

110 Uniform Collaborative Law Act (1) The party or the prospective party requests beginning or continuing a process; and (2) The collaborative lawyer reasonably believes that the safety of the party or prospective party can be protected adequately during a process.

111 Domestic Violence Advocacy Community Empowering survivors means allowing them to have access to and choose the type of legal process they want Should not have a bright line rule that precludes all cases where there is a history of domestic violence from a particular process if there are adequate protections, it may work in some cases

112 Scholars Prof. Nancy Ver Steegh, William Mitchell College of Law: Collaborative law functions almost entirely outside the court system, and collaborative lawyers, as the gatekeepers and managers of the process, are thus positioned to identify and address intimate partner violence. However, domestic violence training for and screening by collaborative lawyers is essential.

113 Scholars Nancy J. Cameron, Collaborative Practice: Deepening the Dialogue (2004): In determining whether a case is appropriate when there is domestic violence, lawyers should consider the timing, whether the victim will push for any settlement to end the conflict and whether the victim can participate safely. The collaborative process

114 Cameron has some components that make it more suitable than mediation in cases where there is abuse because each party has a lawyer which can help level power imbalances. She recommends an interdisciplinary team of professionals with expertise to build safety protocols for the particular family

115 Legal vs. Non-Legal Definition Domestic violence; definitions (2) "Domestic violence" means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.

116 Legal Definition (3) Family or household member" means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child regardless of whether they have been married.

117 Legal Definition With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.

118 Non-Legal Definition Unlike the legal definition of domestic violence, the working definition refers to a much broader range of behaviors used by individuals to exert power and control over their partner. Battering behaviors may include Physical abuse Sexual abuse Psychological/emotional abuse Verbal abuse Economic abuse

119 Typical Batterer Characteristics Minimization Denial Justification Blaming victim Blaming outside stress Blaming substance use/abuse Promises to change Presents a Jekyll and Hyde personality

120 Batterers may use the legal system to make a counter complaint to law enforcement make multiple reports to DCF alleging abuse or neglect Changes lawyers, or ask for continuances to delay court hearings, resulting in financial hardships for the victim

121 COBRAS & PIT BULLS Control/Intimidation Push/Pull Intimacy Emotional Abuse Most Frightening Macabre Charisma Harder to Leave Choose Partners Lie in Wait & Plan Independent Lower Heart Rate Dependent More impulsive Engulfing Intimacy Fear of Abandonment Feel Vulnerable Thinks he is Victim Distorted Self View More Passionate More Isolation Heart Rate Up

122 Victim Behaviors Loyalty to abuser Minimization or denial Blaming outside stress or substance abuse Shame or feeling of responsibility for abuse Fear for safety of self and others, particularly when facing the batterer in court. Religion and/or cultural factors may influence reaction to abuse

123 Domestic Violence Typologies Wingspread Project (2008): National Council of Juvenile and Family Court Judges (NCJFCJ)/AFCC

124 Types of Intimate Partner Violence Situational Couple Violence Coercive Controlling Violence Violent Resistance Separation Instigated Violence Babcock et al, 2004; Capaldi & Owen, 2001; Dutton, 2005; Ellis & Stuckless, 1996; Johnson, 1999; Johnson, 2005, 2006; Johnson & Leone, 2005; Johnston & Campbell, 1993; Kelly, 2002; Kelly & Johnson, 2008; Magdol et al, 1997, 1998; Salari & Baldwin, 2002; Statistics Canada, 2001; Ver Steegh,

125 Situational Couple Violence (Conflict-Instigated Violence) Power, coercion and control are not central dynamics Initiated at similar rates by both sexes o 9% -12.2% (men) & 12.4%-13% (women) annual incidence rates in US and Canada o Nationally representative random samples of men and women, and community samples Babcock et al, 2004; Capaldi & Owen, 2001; Ellis & Stuckless, 1996; Holzworth- Monroe, 2005; Jaffee et al, 2005; Johnson, 2005; Johnson & Ferraro, 2000; Johnson & Leone, 2005; Johnston & Campbell, 1993; Kelly & Johnson, 2008; Stets & Straus, 1992; Straus & Gelles, 1992; Ver Steegh,

126 Situational Couple Violence (2) Conflict escalates into physical violence Related to poor management of conflicts Minor forms of violence most common (pushing, shoving, grabbing) Injuries not common, generally contained Partners not generally fearful of each other Babcock et al, 2004; Capaldi & Owen, 2001; Ellis & Stuckless, 1996; Jaffe et al, 2005; Johnson, 2005; Johnson & Ferraro, 2000; Johnson & Leone, 2005; Johnston & Campbell, 1993; Stets & Straus, 1992; Ver Steegh,

127 Situational Couple Violence (3) Frequency and time frame vary from once only to frequent, past only to current Generally decreases over time, & with age More likely to stop after separation 67% of men and 60% of women reported violence stopped after separation (Canada) Babcock et al, 2004; Johnson & Ferraro, 2000; Johnson & Leone, 2005; Johnston & Campbell,

128 Situational Couple Violence (4) Mutual: more than half report violence perpetrated by both partners (62% men/52% women) Female-only violence: 18% of men and 35% of women report only woman was violent Male-only violence: 20% of men and 13% of women reported male was violent Majority of violence did not result in injury to either men or women Kwong et al,

129 Coercive-Controlling Violence (Classic Battering) Intimidation, coercion, control, emotional abuse are central dynamics Primarily male perpetrated (87-97%), but also female perpetrators in married, cohabiting, and lesbian relationships Incidence of CCV in large representative samples is lower than Situational Couple Violence Jaffe et al, 2003; Johnson, 2005, 2006; Johnson & Ferraro, 2000; Johnson & Leone, 2005; Johnston & Campbell, 1993; Neilson, 2004; Statistics Canada,

130 Coercive Controlling Violence Injuries to victims more frequent and severe compared to Situational Couple Violence Denial, minimizing and blame are most common responses of perpetrator Violence more severe for ¼ of abuse victims after separation, and risk very high When violence is severe and chronic, higher likelihood of severe personality disorders Daly & Wilson, 2000; Dutton, 2005; Ellis & Stuckless, 2006; Johnson, 2008; Johnson & Leone, 2000; StatisticsCanada,

131 Violent Resistance Also described as: o Female Resistance (Walker, 1984; Yllo & Bograd, 1988) o Resistive/Reactive o Self Defense (Pence & Dasgupta, 2006) Violent Resistance => men and women, in an attempt to get violence to stop or stand up for themselves, may react violently to a partner with a pattern of CCV.

132 Violent Resistance (2) Takes place as immediate reaction to an assault Intended primarily to protect oneself or others from injury Does not lead to encounters with law enforcement (Pagelow, 1981) Women who defend themselves twice as likely to sustain injury (Bachman & Carmody, 1994)

133 Violent Resistance (3) Little data on men s violent resistance (Hines, Brown, Dunning, 2007) Most media attention on women who murder their abusive partners (Fox & Zawitz, 2006) Only difference between abused women who murder their partners and those who do not was behavior of the abuser (Browne, 1987) Women who killed experience frequent attacks, severe injuries, sexual assaults and death threats against them or others (Ferraro, 2006)

134 Separation Instigated Violence No history of violence in marriage or other settings prior to the violence at separation o o o Violence is atypical loss of control Humiliating separation or traumatic separation event(s) Typically one-two episodes Partner does not report coercive or controlling behavior Occurs with both men and women Johnston & Campbell, 1993; Kelly, 1982; Kelly & Johnson, 2008; Statistics Canada, 2001; Wallerstein & Kelly,

135 Marital Predictors of Post-Separation Violence Causing Serious Harm Sexual assaults Being seriously hurt physically Called police Left home Partner s drinking Outbursts of anger Poor communication and social skills Extreme possessiveness, jealousy, emotional dependence General control Ellis & Stuckless, 2006; Ellis, et al,

136 Role of Mental Health Neutral Specialized training in intimate partner violence (IPV) is essential Provides assistance in initial and ongoing screenings for violence, abuse, and control Suggests interventions to team: Safety parameters during process Strategies and techniques to mitigate power/control imbalance Safety Focused Parenting Plan details

137 Screening for DV Assessment Protocols Initial Screening Screening & interventions during the process

138 Building Safeguards The frequency, intensity, and recency of the violence The presence of sexual coercion or abuse; The existence of nonphysical coercive strategies including verbal abuse Threats, isolation and financial control The presence of an established history of violence

139 Critical Variables Criminal activity, substance abuse, or mental health issues The determination of who is afraid of what [and who is afraid of who] The needs, interests and well-being of children; any history of child maltreatment

140 Critical Variables (2) Extent to which the violence is consistent with a recognized pattern with proven implications for ongoing risk, or the utility or impact of particular interventions or determinations Family Strengths and protective factors should also be taken into account and supported

141 Regardless of the type of violence The violence and power and control dynamics present in a particular family are heightened when the family is involved with the judicial system.

142 Screening Pragmatics Are the facts in dispute on the violence issue? When did the allegations of violence first surface? If the allegations are in dispute, what system will be used to determine veracity? Is the violence likely to recur in the new family living arrangement? What PP arrangements will work best to lower the risk of harm to the child?

143 Probe for A, B, C s of violent, abusive, and controlling behaviors A = Attitudes toward violence, abuse, and control in relationship B = Behaviors or threats of behavior that my be violent, abusive, and controlling C = consequences of violent, abusive and controlling behaviors being used or threatened

144 Screening Collaborative lawyers should develop and consistently use a screening tool that involves multiple methods of screening that occur at different points in time to discern the existence, severity, frequency, and nature of the coercion or violence as well as its purpose, meaning and effect

145 Screening Screening methods include confidential, face to face interviews, completion of a written questionnaire, ongoing monitoring and research into court records. ABA screening tool for initial screening

146 Tools & Suggestions Screen for DV prior to CLP starting (e.g. DOVE, other tools) If there is a history of DV and attorneys feel comfortable proceeding, consider: o Requirement for trained MHN throughout process o Separate meetings Ask regular check-in questions throughout and inquire about safety/fear Be knowledgeable about DV resources and referrals

147 Roadmap Prof. Ver Steegh s Uniform Collaborative Law Roadmap: Is a case with domestic violence appropriate for collaborative law process?

148 Roadmap 1. Lawyer s Reasonable Inquiry Protocol Is there a history of: Coercion and violence? Coercion without violence (incipient)? Violence without coercion? Protocol: multiple opportunities for confidential disclosure interviews, questionnaires, document search

149 Roadmap 2. Default: No Collaborative Process Request to proceed with informed consent? 3. Participant Informed Consent Is it safe to participate? Might court involvement be needed? Is either party impaired? Is participation voluntary?

150 Informed Consent Will both parties assert interests and make fair and voluntary agreements? Will both parties make disclosures and participate in good faith? What are the consequences of termination and disqualification? What model of collaborative law will be used?

151 Informed Consent Do the collaborative lawyers have experience with intimate partner violence? Will an expert in intimate partner violence be involved with the process? Are there available alternatives?

152 Lawyer s Reasonable Belief Regarding Safety Risk assessment Safety planning Ver Steegh, Nancy, The Uniform Collaborative Law Act and Intimate Partner Violence: A Roadmap for Collaborative (And Non-Collaborative) Lawyers, 38 Hofstra Law Review, 699,(Winter 2009)

153 Important Questions Differentiation helps but how to screen? How to inform families of options/resources? What safety filters to use when children are at risk? Interdisciplinary focus on experience of families? Avoid rewarding false claims and manipulative tactics? Does best interests analysis help? Ethical balance act for lawyers?

154 Protocol for CLP when DV is a factor These cases need more structure Screening is ongoing Judicious use of caucus. Safety precautions Be aware of seating: Safety, power issues are influenced by seating arrangements Establish very clear ground rules and very clear agenda

155 Protocol for CLP when DV is Factor (2) Use separate waiting rooms Agreements need to have a lot more detail Establish ground rules about outside communication Never negotiate the violence, physical or otherwise

156 Selected Bibliography Collaborative Family Law Conference ( ) Carter, D. K. & Zollo, N. AFCC (2006). Guidelines for parenting coordination: Developed by the AFCC taskforce on parenting coordination. Family Court Review, 44, Ellis, D. & Stuckless, N. (2006). Domestic violence, DOVE, and divorce mediation. Family Court Review, 44 (4), Ellis, D. Stuckless, N., & Wight, L. (2006). Separation, domestic violence and divorce mediation. Conflict Resolution Quarterly, 3, Gelles, R. J. (2007). The use, abuse, and misuse of social science data The cases of intimate partner violence. Family Court Review, 45 (1), Jaffe, P., Crooks, C. & Bala, N. (2005) Making Appropriate Parenting Arrangements in Family Violence Cases: Applying the Literature to Identify Promising Practices, Jaffe, P., Johnston, J.R., Crooks, D. & Bala, N. (2008) Custody Disputes Involving allegations of Domestic Violence: Toward a Differentiated Approach to Parenting Plans, Family Court Review, 46(3). Johnson, M. P. (2008). A typology of domestic violence: Intimate terrorism, violent resistance, and situational couple violence. Boston: Northeastern University Press. Johnston, J.R. (2006). A Child-Centered Approach to High-Conflict and Domestic-Violence Families: Differential Assessment and Interventions, Journal of Family Studies, 12, Johnston, J.R. & Campbell, L. (1993). A clinical typology of interparental violence in disputed custody divorces. American Journal of Orthopsychiatry, 63, (2), Johnston, J.R. & Campbell, L. (1993). Parent-child relationships in domestic violence families disputing custody. Family Courts Review, 31, Kressel, K., Forlenza, S., Butler, F., & Wilcox, C. (1989). Research in Contested Custody Mediations: An Indication of the Case Study Method. Mediation Quarterly, 24, p Lischick, C. Wilcox (2009). Divorce in the Context of Coercive Control. In E. Stark and E. Buzawa (Eds.) Violence against women in families and relationships. Westport CT: Greenwood Publishing Group. Lischick, C. Wilcox (2007). Imminent danger of failing to redefine woman battering as coercive control: Contextualizing an application of Robert s Seven Stage Crisis Intervention Model and the Ecological Nested Model. In A.R. Roberts (Ed.) Battered women and their families, 3rd Edition, (pp ). New York: Oxford University Publishing.

157 Stark, E. (2007). Coercive control: The entrapment of women in personal life. New York: Oxford University Press. Ver Steegh, N. (2005). Differentiating types of domestic violence: Implications for child custody. Louisiana Law Review, 65, Ver Steegh, N. and Dalton, C. (2008) Report from the Wingspread Conference on Domestic Violence and Family Courts. Family Court Review 46(3):

158 Judicial Leadership and the Collaborative Practice By Honorable Alice Blackwell, Ninth Judicial Circuit of Florida.

159 ONLINE JUDICIAL RESOURCES Florida s Unified Family Court Supreme Court UFC Opinions UFC Tool Kit Model Administrative Order Office of Court Improvement Newsletter Family Law Forms Dependency Bench Book Drug Court Program... For children are not just our future; children are our present. They are our present and what we do today or fail to do can and may forever alter their future. And the lives of children and their families can forever be changed by our action or inaction. Florida s Unified Family Court - Justice Barbara J. Pariente DEPENDENCY DELINQUENCY Office of the State Courts Administrator Office of Court Improvement Supreme Court Building 500 South Duval Street Tallahassee, Florida DOMESTIC RELATIONS Phone: Fax: Families don't think of their problems in terms of divisions of the court. If you are hearing or voice impaired, call 711. Upon request by a person with a disability, this document will be made available in an alternate format.

160 HISTORY OF OF UFC WHAT IS IS UFC? Unified Family Court is a fully integrated, comprehensive approach to handling all cases involving children and families, while at the same time resolving family disputes in a fair, timely, efficient, and cost-effective manner. The Essential Components Include: Court case management to monitor the case progress and evaluate each case at the outset to determine the appropriate resources and the appropriate way to handle the case. In 1991, the Legislature s Commission of Family Courts issued its report pursuant to a legislative directive to: develop specific guidelines for the implementation of a family law division within each judicial circuit; provide recommendations for statutory, rule and organizational changes; and recommend necessary support services. Between 1991 and 2001 three Supreme Court opinions were issued emphasizing the need for a family court system which would provide better protection for children in court and an improved method for resolution of family problems. In May 2001 the Supreme Court issued a fourth and unanimous opinion citing twelve guiding principles of a family court as a foundation for defining and implementing a model family court, including: Children should live in safe and permanent homes. UFC increases efficiency and is better for families by: HY UFC? WHY Eliminating duplicate hearings. Decreasing the potential for conflicting orders. Creating opportunity for alternative dispute resolution. Providing prompt linkages to services. Promoting more informed judicial decision-making. Coordination of multiple cases involving one family. Needs and best interests of children are primary considerations. Collaboration between the judiciary, stakeholders, and the community to provide access to an array of services for families. Less adversarial approach to handling family cases that focuses on minimizing harm to the child while balancing due process concerns. All persons should be treated with objectivity, sensitivity, dignity and respect. Cases with inter-related family issues should be consolidated or coordinated. The court is responsible for managing its cases. A Vision Without Division... A means of differentiating cases should be available. Parties should be empowered to select ways to address their individual case. Office of the State Courts Administrator Office of Court Improvement Supreme Court Building 500 South Duval Street Tallahassee, Florida

161 Interest-Based Negotiation: The Key to Agreement Readiness By Forrest Woody Mosten, Esq.

162 INTEREST- BASED STRATEGIES FOR COLLABORTIVE PROFESSIONALS Tampa, Florida May 17, 2013

163 ARE YOU A PEACEMAKER? Or Are You Just A Litigator Dressed Up in Collaborative Clothing?

164 NEGOTIATION STRATEGIES

165 SHIFT FROM MAKING A DEALTO BUILDING AGREEMENTS

166 USE YOUR TOOLBOX TO DESIGN TO BUILD LASTING AGREEMENTS

167 TOOLB0X APPROACH

168 ACQUIRE TOOLS PRIOR EXPERIENCE IN OTHER FIELDS BASIC TRAINING(S) ADVANCED TRAININGS STUDY GROUPS SUPERVISION CONFERENCES READING

169 KNOW WHAT TOOLS YOU HAVE

170 TOOLS FOR INTEREST BASED NEGOTIATION NEW PARADIGM REFRAMING SKILLS IMPORTANCE OF POSITIONS INTERESTS OPTIONS

171 OLD PARADIGM RIGHTS BASED ORIENTATION CONFIDENCE THAT COURTS WILL PRODUCE BEST JUSTICE MINDSET THAT LAWYERS IN CHARGE

172 Competitive Negotiation Reflects Adversary System Claims v Creates Value Distributive v Integrated Bargaining Limited Pie Zero Sum Game Win-Lose or Lose-Lose Use Power, Leverage and/or Fear to Create Self-Doubt (Dissonance) Can Push to Impasse or Retaliation Future Relationships are Minimized for Perceived Immediate Gain

173 NEW PARADIGM CLIENT CENTERED DECISIONS POWER SHARING INTERDISCIPLINARY LAWYER AS PROBLEM SOLVERS, COUNSELORS, HELPERS, HEALERS NEGOTIATION IS LAST STOP ON DISPUTE RESOLUTION HIGHWAY

174 NEW PARADIGM NEGOTIATIONS MUTUAL INTERESTS UNDERLYING NEEDS FOCUS ON PROCESS OF NEGOTIATION CANDOR AND TRANSPARENCY GOOD SETTLEMENT IS: CAN I LIVE WITH IT

175 New Paradigm Started with Getting to Yes: Negotiating Agreements without Giving In Separate the People from the Problem Develop Options for Mutual Gain Use Objective Criteria Understand your B A T N A Focus on Interests not Positions

176 INTEREST BASED NEGOTIATIONS

177 INTERESTS MOTIVATE PEOPLE; THEY ARE THE SILENT MOVERS BEHIND THE HUBBUB OF POSITIONS. YOUR POSITION IS SOMETHING YOU HAVE DECIDED ON. YOUR INTERESTS ARE WHAT CAUSED YOU TO SO DECIDE. Getting to Yes

178 ELEMENTS OF INTEREST BASED NEGOTIATION POSITIONS INTERESTS OPTIONS CONVERSATION Leading to AGREEMENT

179 INTEREST- BASED NEGOTIATION Stage 1: Party 1 States Position Stage 2: Acknowledge and Restates Position Accurately Stage 3: Party 2 States Position Sage 4: Acknowledges and Restates Position Accurately of Both Parties

180 INTEREST- BASED NEGOTIATION Stage 5: Uncovers the Interests Beneath the Positions Stage 6: Mutualize Interests

181 STEPS 7-8 DEVELOP AND TEST OPTIONS Stage 7: Brainstorm Options Developed by the Parties Stage 8: Add Additional Options with Permission of Parties and Prioritize based on Each Party s Willingness to Consider

182 OPTIONS Stage 9: Test Selected Options with Both Parties Using Criteria of Impact on Relationship (Cost, Children, Privacy, Speed of Resolution)

183 TEST OPTIONS HOW WILL THIS OPTION WORK? WHAT ARE POSITIVES OF THIS OPTION? WHAT ARE NEGATIVES OF THIS OPTION?

184 REFRAME OPTIONS FACTS INTERESTS EMOTIONS AGENDA ITEM LEGALCONCEPTS

185 STEP 10 DISCUSSION TO RESOLUTION Stage 10: Facilitate Discussion Leading to Agreement

186 DE-POSITION WITH SELF-INTEREST

187 DePosition with Positive Self-Interest Accurately Restate Party s Position Ask: Imagine a Judge accepted your position, how would that benefit you? List: All Benefits---squeeze dry. Restate All Benefits Ask: If an ultimate settlement dealt with each of these concerns, would you consider it?

188 TIPS FOR DEPOSITIONING Use Either Joint Session Or Caucus Be Accurate In Restating Lean Over Backwards To Accept Party s Goals Go For Baby Step not Agreement-leave It Hanging Can Be Used With Overall Goal Or With A Single Issue

189 NORMALIZING AND SOLVABILITY

190 EMOTIONAL ASPECTS OF FINANCIAL ISSUES (1) DEEP SEATED CONDITION SPECIAL TRANSITION NEEDS OVERWHELMING ONE-TIME EXPENSES COMMUNICATION REPLAY OF MARRIAGE ROLES DURING MARRIAGE Feelings of DEPRIVATION

191 Interest Based Negotiation DURING INTAKE I have to get my husband out of the house because his abusive language is frightening me and the children OLD PARADIGM: Change the Locks, Call the Police, and get a Video Security Camera REFRAME:

192 Interest Based Negotiation DURING INTAKE I only have a budget of $3,000 for professional fees. Can you do it? OLD PARADIGM: I don t work on a flat fee. Let me refer you to a colleague with a lower hourly rate REFRAME :

193 Interest Based Negotiation DURING INTAKE I ve got to see you by tomorrow because my business is about to file court papers OLD PARADIGM: I ll Squeeze You in at 6PM REFRAME

194 Interest Based Negotiation DURING INTAKE I love your background and your approach, but you are too far from me (10 miles, 30 minutes). Can you refer me to someone just like you who is closer? OLD PARADIGM: Sure, call REFRAME

195 INITIAL CLIENT MEETING My spouse is very controlling and manipulative. I want to take the money from the joint money market account before he does. OLD PARADIGM: THE ACCOUNT IS HALF YOURS. JUST TAKE HALF AND HIM TO TELL HIM REFRAME

196 INITIAL CLIENT MEETING I don t want my spouse to consult with a lawyer I don t want the expense or hassle of lawyers OLD PARADIGM: If she doesn t get a lawyer, any settlement you reach will be useless REFRAME

197 INITIAL CLIENT MEETING If my daughter doesn t want to stay overnight at my house, there is no way that I will pay for college next year OLD PARADIGM: While you don t have an obligation, don t threaten to cut her off because it will ruin your relationship. REFRAME

198 CONVENING THE PROCESS Your client wants this disqualification clause because he knows that we have the law on our side. I am willing to try to settle the case but not to sign any participation agreement. OLD PARADIGM: If you don t sign the Stipulation, we will file an OSC by Monday REFRAME

199 CONVENING THE PROCESS We are willing to sign the disqualification clause if your client pays for all the fees for the Collaborative process because we don t think it will work. OLD PARADIGM: If you don t agree to have the community pay for both our fees we won t sign REFRAME

200 CONVENING THE PROCESS I like the idea of a neutral financial professional but only if we can use the reports if the case goes to court OLD PARADIGM: Any exceptions to the inadmissiblity of material prepared for Collaborative Process would doom the process. REFRAME

201 COLLABORATIVE TEAM PLANNING/DEFRIEFING MEETING It is crucial that I be part of every meeting with the parties. We can t be penny wise and pound foolish. OLD PARADIGM: Both of the parties want to keep down fees REFRAME

202 COLLABORATIVE TEAM PLANNING/DEFRIEFING MEETING Husband s Coach: I know that the wife needs financial support right away. However, our protocol calls for us to have a session on parental communication and developing a schedule so she will just have to wait until the next session.

203 COLLABORATIVE TEAM PLANNING/DEFRIEFING MEETING OLD PARADIGM: We re the Pilots, the Clients are the Passengers. Let s Start with Communication: REFRAME

204 FIRST JOINT SESSION I don t want to read the participation agreement out loud. Let s just get down to it as this is my first and last session. OLD PARADIGM: You have to know what is in the agreement and our Protocol says reading it aloud together is the best way REFRAME:

205 FIRST JOINT SESSION We must work out which schools the children go to next year and send a check by Friday. I don t have time to fill out a budget. OLD PARADIGM: If you don t fill out a budget we can t start working on support REFRAME:

206 FIRST JOINT SESSION I can t come to any more sessions for the next 5 weeks as I am starting a new project at work next Monday. OLD PARADIGM: We have to build momentum and taking a 5 week break will hurt the process. REFRAME

207 AGREEMENT READINESS There is no way that we can sell the house until the market recovers OLD PARADIGM: You don t have the cash flow to support this house. REFRAME

208 AGREEMENT READINESS Wife must go back to work in 6 months and earn at least $2500 per month. If she doesn t, her income must reflect that amount of imputed income. OLD PARADIGM: Both parties must make every effort to support the children REFRAME:

209 AGREEMENT READINESS My father loaned us the $300,000 for to open up this business and you agreed that you would repay your half to him if we ever broke up OLD PARADIGM: Contracts made to third parties during the marriage are community obligations REFRAME

210 INTEREST BASED NEGOTIATION STRATEGIES 1 Forrest (Woody) Mosten The term Interest Based Negotiation goes beyond making a deal as to the terms of settlement with the other party. You can also use these strategies with your own clients, colleagues, experts, your staff, and other people involved in your work. TOOLBOX APPROACH The toolbox approach means that you gather your strategies from a number of diverse schools of negotiation theory and utilize them in appropriate situations with the personality and talents that you bring to the table. The elements of the toolbox approach are: 1. Acquire the tools of Interest Based Negotiation Understanding Process into basic stages and anticipate use of interest based negotiation in each stage with skilled use of reframing 3. Learn when and how to use each tool. Develop check-lists and tool box to anticipate strategies and use when needed 4. Practice using your tools More comprehensive training courses, focused sessions of Practice Group, Study Group, Simulation, and live client interaction 5. Monitor your progress. Reflect during and after sessions what you have done well and what you could do better next time, debrief with colleagues, write summary and planning memos, try to replicate your best practices. 10 STEPS TO INTEREST BASED NEGOTIATION 1 This article is based on concepts in Chapter 4, Toolbox of Strategies for Building Agreements in Forrest S. Mosten, Collaborative Divorce Handbook (Jossey Bass, 2009) 1

211 Getting to Yes 2 is the seminal book in our field that introduced interest based negotiation to the conflict resolution field (and to the world). Since its first publication in 1983, I have been teaching its concepts to lawyers and conflict resolution professionals. However, although they understood and appreciated the approach, I found that many professionals and students had difficulty putting it to use. I have broken down the concepts to a 10 stage process: Stage 1 ( Party 1 ) States Position Stage 2: (Collaborative Professional) Acknowledge and Reframes Party 1 s Position Accurately (3 Types of Reframing: Issue to be on Agenda; Emotion embedded in the Position; Legal/Substantive Issue Raised Stage 3: (Party 2) States Position Stage 4: (Collaborative Professional) Acknowledge and Reframes Party 2 s Position Accurately (3 Types of Reframing: Issue to be on Agenda; Emotion; Legal/Substantive Issue Raised Restate Party 2 s Position Accurately Stage 5: (Collaborative Professional) Uncover the Interests Beneath the Positions of Both Parties and Reframe the Positions into Interests Stage 6: (Collaborative Professional) Mutualize Interests Stage 7: Collaborative (Professional) Brainstorm Options Developed by the Parties Stage 8: (Collaborative Professional) Add Additional Options with Permission of Parties Stage 9: (Collaborative Professional) Test Selected Options with Both Parties Using Criteria of Impact on Relationship (Cost, Children, Privacy, Speed of Resolution) Stage 10: (Collaborative Professional) Facilitate Discussion Leading to Agreement USE OF INTEREST BASED NEGOTIATION THROUGHOUT COLLABORATIVE PROCESS INTAKE I have to get my husband out of the house because his abusive language is frightening me and the children I only have a budget of $3,000 for legal fees. Can you do it? I found your name on the LACFLA website. I don t want to go to court but this is the most important negotiation of my life. Are you tough enough? I ve got to see you by tomorrow because my wife is about to file papers 2 Roger Fisher, William Ury and Bruce Patton, Getting to Yes,

212 I love your background and your approach, but you are too far from me (10 miles, 30 minutes). Can you refer me to someone just like you who is closer? INITIAL CLIENT MEETING My is very husband is very controlling and manipulative. I want to take the money from the joint account before he does. I don t want any coaches. I came to get a divorce, not therapy. If my daughter doesn t want to stay overnight at my house, there is no way that I will pay for college next year CONVENING COLLABORATIVE PROCESS Your client wants this disqualification clause because he knows that we have the law on our side. I am willing to try to settle the case but not to sign any participation agreement. We are willing to sign the disqualification clause if your client pays for all the fees for the Collaborative process because we don t think it will work. I like the idea of a neutral financial professional but only if we can use the reports if the case goes to court TEAM PLANNING MEETING It is crucial that I be part of every meeting with the parties. We can t be penny wise and pound foolish. Husband s Coach: I know that the wife needs support right away. However, our protocol calls for us to have a session on parental communication and developing a schedule so she will just have to wait until the next session. FIRST JOINT SESSION Husband: I don t want to read the participation agreement out loud. Let s just get down to it as we have quite a few meters running. Wife: We must work out which schools the children go to next year and send a check by Friday. I don t have time to fill out a budget. Husband: I can t come to any more sessions during the work day. Wife: The children are all home by 3PM so we must have sessions that end by 2PM AGREEMENT READINESS Wife: There is no way that we can sell the house until the market recovers Husband: Wife must go back to work in 6 months and earn at least $2500 per month. If she doesn t, her income must reflect that amount of imputed income. 3

213 Wife: My father loaned us the $300,000 for the house and you know he expects that amount to be given to me off the top of the sale. De positioning With Self Interest This key agreement readiness strategy is used to dislodge a position in order to start using the 10 step process to close the deal. : 1. Accurately Restate Party s Position 2. Ask the Party: Imagine a Judge/Other Party/Magic Fairy/I accepted your position, how would that benefit you? 3. Ask the Party to List All Benefits That He/She would get if the position is accepted squeeze dry. 4. Restate All Benefits 5. Ask the Party: If an ultimate settlement dealt with each of these concerns, would you consider it? Emotional Outbursts of One Party Getting a divorce can be difficult often provoking people to have tantrums, tears, and other emotional outbursts. The strategy of Self Soothing is an interest based client centered tool based on the work of Dr. Murray Bowen. it works using the following steps: 1. Acknowledges pain of party or fear of underlying conduct 2. Offer Party Some Time or Other Resources/People for Support 3. Try to Get Commitment by Party to gain grip on emotions and to continue in the session Mediator Asks Party what has worked in past and applies to Situation 4. Party chooses self soothing approach based on the party s past experience 5. Supports the Party s Approach to Self Soothing 6. Stop all negotiation or other business until soothing occurs and Party is Ready to Go On BUILDING AGREEMENT I want to stay in the house for another 8 years until our youngest child graduates high school I will never pay a dime more of spousal support if she moves in to live with another man He always said that my novel was my separate property and I expect him to honor his word now that I have sold it and received a $100,000 advance after separation. 4

214 Mosten Mediation and Collaborative Training 9401 Wilshire Blvd. 9th Floor, Beverly Hills, CA Phone: Fax: Creating Agreement Readiness to Build Agreements Most Collaborative Professionals enjoy and support negotiating with an interest based approach. However, negotiation goes well beyond settlement terms. This module will focus on those variables that need to be addressed to maximize the parties readiness to even consider settlement. Such readiness not only prevents parties from "Yes--Butting" you and the other parties to frustration (such as, I would be most open to sharing parenting during the school week, but...(fill in the blank)" The key to achieving Agreement Readiness is to help the parties acknowledge that the old ways that they have interacted (including negotiated) with each other is not working and they must be open to a new way. This creates a corollary acknowledgment that the parties are interdependent in their search for an agreement: they cannot have an agreement unless the other party's needs and goals are integrated. The following are just some of the Agreement Making tools that you might consider: 1. Impact of Structure on Negotiation Behavior 2. Conflict as An Opportunity Copyright Forrest S. Mosten,

215 3. Awareness that Old Ways and Current Position Are Not Working 4. Commitment to Try New Way 5. Baby Steps Toward Agreement 6. Interdependence of Parties 7. Build Agreements Rather Than Negotiate Positions 8. Emotional Interest Based Strategies to Diffuse Financial Issues 9. Normalcy and Solvability 10. Dig for Interests 11. Find Commonality of Interests 12. Preliminary Private Planning Meetings 13. Presentation of Info by Parties (Flipchart or Power Point) 14. Christopher Moore s Pizza of Sources of Conflict Data Relationships Structural Interest 15. Use of Homework 16. Anchor Use First Offer to Anchor the Negotiation 17. Bias Confirmation 18. Single v Multiple Issues Copyright Forrest S. Mosten,

216 19. Avoid Zero Sum Thinking 20. Improving Communication of the Parties 21. Celebrate mini-agreements 22. Confirming agreements previously reached 23. Start with Easy Agreements. 24. Look through windshield, not rearview mirror 25. Use I statements Demonstrate respect and compassion for the client s spouse. 27. spouse 28. Jointly Draft and approve summary letters before sending to clients: 29. Debrief Regularly 30. Ask, Don t Assume 31. Before reacting or making a demand, ask what the other party s needs and concerns are and fashion communication accordingly 32. Acknowledge the Positives of Each Party 33. Celebrate Movement 34. Identify and Acknowledge Initial Positions of the Parties 35. Use professional articles and research to offer commonality 36. Explain How Reaching a Settlement Can Accelerate Healing for the Family: 37. Share Boilerplate Early 38. Stress realistic outcomes Copyright Forrest S. Mosten,

217 39. Connect Individuals, Relationships, and Networks 40. Work toward maximum satisfaction 41. Focus on needs not just rights 42. Broaden definition of problem 43. Omni partial be part of conflict yet neutral with personal boundaries 44. Ritual can bring people out of rehearsed or warm story and creates room for something new to emerge people can speak from the core 45. Describe set of behaviors associated with successful outcomes 46. Reinforce importance of peaceful choice as commendable effort toward higher moral ground 47. Reframe in higher principle or fundamental truths: No life without loss; pain in great teacher, all things change 48. Recognize and respect the history of the conflict 49. Show commonality of parties and how they are joined at the hip 50. Mix and match best of all parties ideas, needs and concerns Copyright Forrest S. Mosten,

218 51. Ground rules against personal attacks 52. Use least invasive method to preserve client control 53. Courage to share failure and lack of knowledge with other professionals 54. Model Treatment Other Professionals with respect 55. Be transparent about the process 56. Teach Party Communication and Negotiation 57. Manage Own Biases to Reduce Non-Neutral Feelings 58. Avoid Premature Negotiation 59. Explain Reframing Process and Types of Reframing 60. Phrases for Active Listening 61. Take Time to Build Trust Between Parties 62. Open Questions--Life Time Curiosity and Learning 63. Dialogue--Going Beyond Debate or Discussion 64. Reciprocity 65. Develop and Show Empathy 66. Encourage Party Alignment Against Professionals 67. Levels of Parental Conflict 68. Describe the Good Divorce Copyright Forrest S. Mosten,

219 69. Have All the Witches at the Table Copyright Forrest S. Mosten,

220

221 Recognizing and Managing the Challenging Client By Steven Berzner, Esq. Sheldon E. Finman, Esq. Paul Garcia, CPA Rosemarie S. Roth, Esq. Pamela A. Schneider, Esq. Lana M. Stern, Ph.D.

222 INAUGURAL COLLABORATIVE FAMILY LAW CONFERENCE COLLABORATIVE PRACTICE: THE FUTURE IS NOW! MANAGING DIFFICULT CLIENTS Professionals need to set clear boundaries about what is acceptable behavior in the Team meetings. Boundaries, expectations about office meetings, phone calls and correspondence ( s) need to be clearly defined. Keep detailed records of your discussions and interactions with the client Explanations of consequences rather than insight will be more motivating Be prepared for extreme reactions when you do not agree with your client. Reinforce the contributions of the client and acknowledge positive behavior in Team meetings. Protect the client s dignity and self esteem Educate the client about the legal process what is possible, what is not Use the MHP as much as possible to field issues that may arise. When negotiating, frame things so that it appears to be more advantageous to them. Prepare that they may walk out of a meeting if things are not going their way. They may need help in seeing another s perspective. WHAT THE PROFESSIONALS NEED TO DO Screen your clients you don t have to take every case! What dynamics push my buttons? Know thy buttons Building a strong trusting relationship with the other professionals. Project confidence and positive hope. Break issues into small workable pieces. Be aware of the non-voluntary client. Lean on the Team.

223 WHAT TO DO IN THE OFFICE Deep breathing - take a moment to calm down Focus on one item at a time Left brain activities LISTING, WRITING, READING Encourage your client to take notes Goal setting and long term planning Planning an agenda Inventory their property Creative thinking Positive visualizations Assignments of homework WHAT TO DO AT HOME Self-care be with friends, go to a movie Focus on the positive Make a gratitude list Prioritize what s important the children, health Behavioral rather than cognitive tasks Deep muscle/relaxation techniques massage Meditation, yoga Systematic desensitization Social skills/assertiveness training Therapy

224 HOW TO REACT TO THE OUT OF CONTROL CLIENT Not responding doesn t work; it only allows the out of control behavior to escalate. Resist the urge to confront people that are angry and upset can also trigger the professional s amygdala - we are all experiencing the same fight/flight response. Wrong responses Trying to take control with critical, confrontive statements. You re being disrespectful! You re making no sense. That is not a workable solution! Correct responses You have a good point, let s look at this proposal. Let s consider all the options that are available. We can all brainstorm about the issue and see what else we can come up with. Use I messages instead of You messages Time-outs give the person time to go from right to left brain thinking Remember to use Bill Eddy s EAR Method Empathize Attend Respect

225 Who Are High Conflict People? By Bill Eddy, LCSW, Esq by Bill Eddy In 2003, I used the terms High Conflict People, High Conflict Personalities and HCPs in a selfpublished book titled High Conflict Personalities: Understanding and Resolving Their Costly Disputes. (I couldn t get a publisher because they said there was no interest in this subject.) The term high conflict had been around for at least twenty years, especially in regard to highconflict families in divorce. I wanted to shift the focus to describe and deal with individuals, since it seemed that many high-conflict families included only one high-conflict person and that dealing directly with that person would be the most effective way to help the family. Since I had been a therapist before becoming a lawyer, I knew about personality disorders, how confusing they were, how persuasive they could be, and some of the methods for treating them. Yet no one outside of psychiatric treatment seemed to have a clue about their behavior and often reacted in ways that made things worse. Since I was also seeing the same personalitydisordered behavior in workplace disputes and neighbor disputes, as well as non-divorce legal disputes, I wanted to explain to others what was going on. People with personality disorders were showing up in all of these settings as high-conflict people, where their behavior was interpreted as simply about the current issue, rather than about the need for serious mental health treatment. Now, after a dozen years of focusing on this subject, I want to explain my current understanding of these terms in this article, and how to use them in a positive and practical way. An Observable High Conflict Pattern High-conflict people (HCPs) have a pattern of high-conflict behavior that increases conflict rather than reducing or resolving it. This pattern usually happens over and over again in many different situations with many different people. The issue that seems in conflict at the time is not what is increasing the conflict. The issue is not the issue. With HCPs the high-conflict pattern of behavior is the issue, including a lot of: All-or-nothing thinking Unmanaged emotions

226 Extreme behaviors Blaming others All-or-nothing thinking: HCPs tend to see conflicts in terms of one simple solution rather than taking time to analyze the situation, hear different points of view and consider several possible solutions. Compromise and flexibility seem impossible to them, as though they could not survive if things did not turn out absolutely their way. They often predict extreme outcomes if others do not handle things the way that they want. And if friends disagree on a minor issue, they may end their friendships on the spot an all-or-nothing solution. Unmanaged emotions: HCPs tend to become very emotional about their points of view and often catch everyone else by surprise with their intense fear, anger, yelling or disrespect for those nearby or receiving their comments over the Internet or anywhere. Their emotions are often way out of proportion to the issue being discussed. This often shocks everyone else. They often seem unable to control their own emotions and may regret them afterwards or defend them as totally appropriate, and insist that you should too. On the other hand, there are some HCPs who don t lose control of their emotions, but use emotional manipulation to hurt others. They may trigger upset feelings in ways that are not obvious (sometimes while they seem very calm). But these emotional manipulations push people away and don t get them what they want in the long run. They often seem clueless about their devastating and exhausting emotional impact on others. Extreme behaviors: HCPs frequently engage in extreme behavior, whether it s in writing or in person. This may include shoving or hitting, spreading rumors or outright lies, trying to have obsessive contact and keep track of your every move or refusing to have any contact at all, even though you may be depending on them to respond. Many of their extreme behaviors are related to losing control over their emotions, such as suddenly throwing things or making very mean statements to those they care about the most. Other behaviors are related to an intense drive to control or dominate those closest to them, such as hiding your personal items, keeping you from leaving a conversation, threatening extreme action if you don t agree, or physically abusing you.

227 Blaming others: HCPs stand out, because of the intensity of their blame for others especially for those closest to them or in authority positions over them. For them, it is highly personal and feels like they might not survive if things don t go their way. So they focus on attacking and blaming someone else and find fault with everything that person does, even though it may be quite minor or non-existent compared to the high-conflict behavior of the HCP. In contrast to their blame of others, they can see no fault in themselves and see themselves as free of all responsibility for the problem. If you have been someone s target of blame, you already know what I m talking about. They also blame strangers, because it is so easy. On the Internet, they can be anonymous and make the most extreme statements. Even if they know you, there is a sense of distance and safety, so that extremely blaming statements can flow. A Predictable Pattern Perhaps 15% of our society (and growing) seems preoccupied with blaming others a lot of the time. Though it s a growing problem, it s a predictable problem and can be handled in most cases, if you understand it. Once you know some aspects of their pattern of behavior, you may be able to anticipate other problems that will arise and avoid them or prepare to respond to them. HCPs seek Targets of Blame, because blaming others unconsciously helps them feel better about themselves. Blaming others also helps them unconsciously feel safer and stronger when they connect with other people. They re constantly in distress and totally unaware of the negative, self-defeating effects of their own behavior. In a sense they are blind. Since HCPs can t see the connection between their own behavior and their problems, their difficult behavior continues and their conflicts grow. The Underlying Personality Pattern High Conflict People have high-conflict personalities. Conflict is part of who they are. It s a lifelong personality pattern of thinking, feeling, and acting. Time after time, they avoid taking responsibility for their problems. Time after time, they argue against feedback, regardless of how helpful and truthful it may be. And time after time, they try to persuade others to agree with their rigid points of view and to help them attack their Targets of Blame. The issues come and go, but their personality traits keep them in conflict. Their problems remain unresolved and the stress on those around them often increases.

228 From my own experience and the feedback of many people who take our seminars with High Conflict Institute, the HCP personality pattern seems to be the same, regardless of the kind of conflict or who else is involved: Underlying High-Conflict Personality Pattern 1. Rigid and Uncompromising, Repeating Failed Strategies 2. Difficulty Accepting and Healing Loss 3. Negative Emotions Dominate their Thinking 4. Inability to Reflect on their Own Behavior 5. Difficulty Empathizing With Others 6. Preoccupied with Blaming Others 7. Avoids Any Responsibility For the Problem or the Solution Perhaps you know someone with this pattern. Someone who insists that you, or someone you know, is entirely to blame for a large or small (or non-existent) problem. If so, he or she may be an HCP. However, before you rush to tell that person that he or she is an HCP, remember: Do not openly label people and don t use this information as a weapon. It will make your life much more difficult if you do. Personality Disorders Is a high-conflict personality the same thing as a personality disorder? Not exactly, but there is a lot of overlap. From my training and experience as a therapist, I believe that the people who become HCPs have personality disorders or some traits of a personality disorder.

229 When I worked as a therapist at psychiatric hospitals and clinics, I learned a lot about patients with personality disorders. Years later, when I became an attorney and mediator, I recognized that the people who were stuck in high-conflict behavior had many of the same characteristics as people with personality disorders. A personality disorder is a long-term dysfunctional pattern of thinking, feeling and behaving that affects many areas of a person s life. People with personality disorders are not crazy or stupid, and some are very intelligent. Instead, they have blind spots especially regarding their behavior with the people close to them in everyday life. They have daily personal problems which they keep repeating and repeating. Yet they don t recognize these problems and can t seem to stop themselves, even when their problems are obvious to everyone around them and are harmful to themselves. They re stuck in self-defeating and self-destructive behavior. People with personality disorders are psychologically unable to grasp the consequences of many of their actions. They have a psychological barrier against examining their own behavior, and therefore they don t change their own behavior, even when it would help them. Instead, they defend their actions and personalities and remain stuck repeating their self-defeating behavior. HCPs and people with personality disorders share three key characteristics: 1. They lack self-awareness, especially of the effects of their own interpersonal behavior on others. 2. They don t change their behavior, even when receiving repeated negative feedback. 3. They externalize responsibility for problems in life, blaming forces beyond themselves. In addition, HCPs have the following two behavior patterns which many people with personality disorders do not have: HCPs are preoccupied with a Target of Blame usually someone very close to them (boyfriend, girlfriend, spouse, parent, child, best friend, etc.) or someone in an apparent position of authority (supervisor, company, government agency, police, doctor, lawyer, politician, etc.). They take aggressive action against that person, including lawsuits, employment complaints, spreading rumors, and even violence, in an effort to get that person to go away or change their

230 behavior, so that the HCP will stop feeling so threatened inside. Many people with personality disorders do not focus on one person this way and are not able to sustain an attack against another person the way that HCPs do. HCPs persuade others to be Negative Advocates usually family, friends or professionals who help in blaming the Target which escalates their conflicts instead of helping them calm down to solve their problems. Negative Advocates are emotionally hooked by the intense fear and anger of the HCP, yet they are usually uninformed. When they hear about (or experience) the HCP s extreme behavior, they often abandon the HCP, so that HCPs are constantly seeking new Negative Advocates. This ability to engage Negative Advocates enables High Conflict People to avoid confronting their own behavior, so that nothing changes and their high-conflict situations continue. Many people with personality disorders do not focus on a Target of Blame, so they don t recruit Negative Advocates. Maladaptive Traits Many high-conflict people have some maladaptive personality traits, but not enough to have a personality disorder. They may have some self-awareness, make some efforts to change and blame others less. However, they still have a pattern of escalating conflicts, with Targets of Blame and Negative Advocates, so that they have the pattern of a high-conflict person. Therefore, HCPs do not always have personality disorders and people with personality disorders are not always HCPs. For practical purposes, the same methods apply with anyone including those with or without personality disorders so you never have to figure this out. HCP is Not a Diagnosis When I developed the terms High Conflict Person, High Conflict Personality and HCP, I did not intend them to be a mental health diagnosis, such as a personality disorder. My intention was to assist ordinary people in managing their professional and/or personal relationships with possible HCPs, not treating the individual as a patient. My intention was to make this information accessible to anyone who needed it if they suspected someone might be an HCP. I recommend having a Private Working Theory that someone may be an HCP. You don t tell the person and you don t assume you are right. You simply focus on key methods to help in managing your relationship, such as paying more attention to: 1) connecting or bonding with the person with empathy, attention and respect; 2) structuring the relationship around tasks rather than reacting to emotions; 3) reality testing so that you don t necessarily believe everything you are told, but also don t assume the person is lying because they may honestly believe inaccurate

231 information; and 4) educating about consequences, as HCPs are often caught up in the moment and can t see the risks ahead. Of course, the HCP concept is closely related to the issues and methods of dealing with people with personality disorders. But only mental health professionals can diagnosis and treat personality disorders. While the committee currently revising the DSM is planning to change the way diagnoses are made for personality disorders, it won t have any effect on dealing with possible HCPs because this is not a diagnosis. It s a description of high-conflict patterns of behavior. It s better to learn about the predictable behavior patterns of HCPs and ways to respond constructively in professional and personal relationships. If you think someone is an HCP, use this information as a Private Working Theory and focus on changing your own behavior, not theirs. Bill Eddy is the President of the High Conflict Institute and the author of several books, including It s All Your Fault! He is an attorney, mediator, and therapist. HCI speakers have presented seminars to attorneys, judges, mediators, ombudspersons, human resource professionals, employee assistance professionals, managers, and administrators in over 25 states, several provinces in Canada, France, Australia and Sweden. For more information go to: or call Times of High Risk with High-Conflict People 2012 by Bill Eddy, LCSW, Esq. We all have dealings with high-conflict people, in our families, at work and in our communities. They often catch us by surprise with their extreme thinking, emotions and behavior, which can include: an inability to compromise, lying, spreading rumors, stealing, damaging property, hiding money, suing their employers, frivolous lawsuits, stalking, abusing children, alienating children, domestic violence and sometimes even killing people. Yet most people scratch their heads, wondering why and how to prevent these extreme behaviors in the future. Generally, HCPs have a narrower range of behavior than ordinary people, which makes them more predictable. Understanding the patterns of their behavior can help you predict times of high risk and to calm them or protect yourself before they escalate into their extreme behavior. This article explains some of the issues involved in predicting and avoiding their worst high-conflict behavior.

232 High-Conflict People (HCPs) High conflict people (HCPs) have a pattern of getting stuck in conflict and increasing conflict, rather than reducing or resolving conflict. They tend to repeat and repeat their pattern, somewhat regardless of the circumstances and consequences. This pattern usually includes the following, which is often obvious to others, but not to themselves: A preoccupation with blaming others All-or-nothing solutions Unmanaged emotions Extreme behaviors They lack awareness of this pattern and their negative impact on others, so that giving them negative feedback tends to increase their negative behavior (including intensely blaming the person who gave them the feedback) rather than leading to insight. For this reason, it s important NOT to tell someone that you think he or she is a high-conflict person. (For methods of handling them that don t rely on negative feedback, see the book: It s All Your Fault: 12 Tips for Managing People Who Blame Others for Everything, Eddy.) HCPs tend to get stuck in this pattern and regularly engage in their extreme behavior when things don t go well for them especially in their high-expectation relationships. High-Expectation Relationships (HER) HCPs tend to play out this high-conflict pattern in high-expectation relationships, such as a boyfriend or girlfriend, husband or wife, parent or child, close co-worker, best friend, professional involved in intense problems (such as a lawyer, therapist, doctor, clergy) and/or with people in positions of authority (such as a boss, employer, government agency representative). In other words, it s a relationship pattern much like the relationship a child has with a parent: expectations of being taken care of; being really secure in the relationship; getting lots of attention and respect; tolerance of any behavior; and so forth. However, when there is a threat to this high-expectation relationship, HCPs tend to engage in intense behavior to maintain the relationship or punish the person for its loss much like the way a young child treats a parent when desperately clinging or having a temper tantrum. For HCPs who grew up with insecure attachments in their early childhood relationships with their parents, it may be that they are seeking a secure parent-child

233 attachment in their adult relationships. Of course a secure parent-child attachment can never be completely fulfilled in an adult relationship, because adults cannot have the unconditional love for each other that a parent must have for a small infant (such as paying lots of one-way attention or tolerating lots of temper tantrums). So when HCPs engage in high-expectation relationships, they are bound to be frustrated when the reasonable person (or another HCP) can no longer tolerate their extreme (essentially child-like) behaviors. Yet the occurrence of these extreme behaviors can be predicted, to some extent, by understanding what triggers them. Times of High Risk For HCPs, extreme behavior is triggered by the perceived loss of the high-expectation relationship and their over-reaction to it. For an HCP, this sense of loss is carried inside and can burst out in any high-expectation relationship regardless of what the other person does, but especially at times the HCP perceives a relationship loss. In the workplace or at school: For example, people experiencing bullying at work or at school often question themselves about what they did to cause the bully (often an HCP) to treat them so badly. Yet, much of the time it may be the HCP s own thinking that has triggered an internal upset that then triggered their high-conflict behavior. However, there are events and warning signs that can help in knowing when there are times of high risk in the workplace or at school. In cases of domestic violence, the victim often wonders what they did to cause their loved one to strike out at them. They often hope it was a mistake and won t happen again. Then, when it happens again and again, victims lose self-esteem because they often blame themselves and lose energy and become more isolated. This, of course, is reinforced by the perpetrator of the domestic violence. The most important message here is that it is not about the victim or target of blame, but rather about the bully or the perpetrator of domestic violence, and his or herperception of relationship loss that triggers their own extreme behavior in an effort to protect himself or herself against this perceived loss. At first, it may be a mistaken assessment of danger on the part of the HCP. But then, their extreme behavior often leads to a real loss, as the victim or target of blame truly does try to get out of the relationship with the HCP. Such times are times of high risk, but times of any type of loss of relationship security are times of high risk with an HCP. Types of loss by personality type: There appears to be at least five types of highconflict people who engage in extreme behavior related to perceived relationship loss. Each type seems to have a particular relationship fear and over-reaction when it is triggered either by internal upsets (such thinking about their own fears) or external events (such as a partner trying to leave the relationship or an employer threatening termination). Definitions of these personality types and their specific high-conflict behavior are explained in depth in the book It s All Your Fault. Remember, it s important not to tell someone you think he or she has this pattern, but rather to adjust your own

234 behavior in getting into relationships, managing relationships and getting out of relationships.

235 SHELDON E. FINMAN, P.A. A T T O R N E Y A T L A W COLLABORATIVE FAMILY LAW COUNCIL OF FLORIDA INAUGURAL CONFERENCE WORKSHOP PRESENTED MAY 17-18, 2013 COLLABORATIVE LAW: BASICS AND TIPS 1. Collaborative Law (CL) involves more than two reasonable attorneys working in a trusting, professional relationship pre-suit. 2. Without a written Collaborative Participation Agreement (PA), signed by both parties and both (or all lawyers, if more than one for either or both sides), a valid and binding Collaborative process has yet to commence. There is no Collaborative case without an executed PA. 3. You should never underestimate the need for a Mental Health Professional. 4. Skills and competence in interest-based negotiations are best practices which should be in every professional s tool box when practicing CL. 5. Competent collaborative lawyers are not WUSSES. A respectful and empathetic attitude, together with establishing firm boundaries of behavior for clients, will promote a higher level of professional competence and better outcomes. 6. EAR is my mantra. I have learned from trainings and books by Bill Eddy how to be a better collaborative practitioner, lawyer and person. Empathy, Attention, Respect Bill Eddy is the authority on working with high conflict persons. 7. When practicing CL, the attorney must leave his testosterone and/or her hormones, and all other ones, at the door! 8. In CL, the lawyers structure the process. The clients determine their outcome. 9. When all else fails in a CL engagement, and you do not know what to do next, call a time-out. Options: debrief with your counterpart colleague call another respected, experienced colleague for a consultation bring a mediator into the process 10. If you are looking for easy work, don t bother engaging in CL. If you want to save families, this is your best opportunity to make a real difference in your practice McGregor Boulevard Post Office Box 1380 Fort Myers, Florida Telephone (239) Facsimile (239) [email protected] Board Certified by the Florida Bar in Marital and Family Law Strength in Collaboration

236 USERS GUIDE THE MHP IN THE COLLABORATIVE PROCESS by LANA M. STERN, PH.D. - MHP Divorce encompasses legal, financial and emotional issues. The decision to divorce is not an easy or a simple task. It is one of the most emotionally stressful events that an individual or family will experience. There are conflicting emotions that are experienced and changes that occur on multiple levels. It is for many, a time of loss which begins with the acknowledgment that the marriage is over and continues as the family recovers, reorganizes and restructures relationships. It is both an end and a beginning and holds sadness and hope for those involved. There are many ways to divorce, most of them involve painful changes to the family structure often superimposed in hostile, stressful circumstances with long-term consequences both financially and emotionally especially to the people that are the most vulnerable. Collaborative law offers an alternative, non-litigated, non-adversarial process. It utilizes an interdisciplinary team made of specially trained professionals who meet in a series of team meetings to help the couple resolve their issues in a civil and respectful manner. The team is made up of two attorneys, one neutral mental health professional and one neutral financial professional who work with the couple in a series of joint meetings. The couple voluntarily agrees not to litigate obviating the need for depositions, subpoenas or opposing experts. The attorneys advocate for their clients, but they share in the common goal of facilitating mutual agreement between the parties. Financial costs may be lower and the emphasis is on cooperation and family privacy. Either party may terminate the process and pursue traditional litigation in which case the entire team is disqualified from representing the parties in subsequent litigation. The collaborative law process allows the professionals to guide the couple through their divorce in an environment

237 grounded in good faith, cooperation, integrity, honesty, transparency and professional ethics. The couple is empowered to determine their own unique resolution, collateral damage is significantly minimized and post-divorce familial relationships are enhanced relative to the traditional divorce process. The emotional component that accompanies the divorce process is by far the most powerful force that steers the course of the divorce. Cool heads may understand the financial consequences of dividing up the family fortune or doing what is in the best interest of the children, but those pesky emotions often blur the way. That is why the inclusion of mental health professionals in the divorce process is one of the most essential components that allow for this transition to proceed with minimal stress and pain. The immediate involvement of the MHP in the divorce process is finally being understood and acknowledged by attorneys as a necessary factor for the successful completion of the divorce. It is not simply the skill set of the MHP who understands human behavior and can model good communication skills. The job of the MHP is much more encompassing and multi-faceted. MHPs can screen for many issues that can potentially derail a negotiation: addictions, domestic violence, psychological domestic abuse, shadow people and power imbalances. Their understanding of underlying dynamics can help prepare both the clients and attorneys for real interest based negotiations to settle issues and move the clients forward. They often function as case manager when referrals for child issues, addictions or mental illness are needed. They can intervene in a multitude of situations from simple misunderstandings in and among the Team members to real crisis situations. They can help with problem solving, creative thinking, and be a support system for both the professionals and the clients. Along with the other Team members, they can help facilitate the meetings and be the voice of safety and neutrality. No other member of the team can caucus with each attorney, financial professional and the clients in a variety of situations and dyads. They can help structure the flow of the process because their lack of alignment and neutrality creates a safe place for understanding the underlying currents to be processed before they disrupt the case. Here are some ways to utilize the skills of the MHP: Step One: It is essential to involve the MHP from the beginning of the process. If you present the MHP as an integral part of the Collaborative model, most clients will accept the MHP as an essential member of the team. Their involvement with the clients before the first Team meetings is especially helpful in creating a safe and comfortable first contact. Step Two: Listen carefully to the feedback from the MHP. The interview that the MHP conducts individually with both clients before the first team meeting is of great significance. Its real purpose is to get a sense of the clients, determine the couple dynamics, communication skills and gauge their readiness to proceed in the Collaborative Process.

238 MHPs are trained to assess for personality traits that may play out in the interactions of the process, influences that will steer the direction of the divorce and circumstances that often appear in the interplay of all the individuals of the Team. It is a complex dance of many personalities that must come together and work together to a satisfactory end. This feedback is critical for the attorneys to gain further insight about their clients. Step Three: Ask the MHP questions about the real needs, interests and expectations of the clients. Involve them in meetings with the clients when there is an emotional issue to be resolved or send them to talk or meet with the MHP. Include the MHP in the attorney/client pre- Team preparatory meetings about the agenda. MHPs can anticipate and defuse potential problems that may get triggered by issues at the Team meeting. Step Four: Parenting Plan. MHPs can prepare the Parenting Plan which gives the MHP the opportunity to gain even more helpful information and smooth over many issues. A final approval of the Parenting Plan is, of course, always the responsiblity of the attorneys and the couple, but the MHP can help with that issue. If time sharing and associated child support become a major issue, the team can work on resolution receiving input from the neutral financial professional. Step Five: Use the Debrief. MHPs are great listeners. If you are feeling frustrated with any aspect of the Collaborative Divorce Process, venting about the issues can be great relief and often times, clarifies the problem. Discuss with them feelings about the other client and the other attorney. We are all human and have our own triggers which sometimes intrude into the interactions during a Team meeting. Remember, A stitch in time saves nine. Once identified, a problem is usually solvable. If the MHP is not meeting your expectations, speak up and discuss the issue with the team. Step Six: Invite and involve the MHP as an equal member of your Practice Group. The Collaborative law process is the true unification of three disciplines working together towards the best outcome for the couple. The MHP is the most under utilized professional on the Team. It is also the responsibility of the MHPs to receive the extra training as Mediator and Parenting Coordinator, to be assertive about their skill set and take the initiative for things like the Parenting Plan and the debrief. Hopefully, by understanding what the MHP can do in the course of a Collaborative Divorce Process, this User Guide will help guide you and improve their usage in the process. MHPs can be a bridge over troubled waters.* * Simon and Garfunkel

239 The Role of the Child in the Collaborative Process By Craig S. Fabrikant, Ph.D

240 Slide 1 Craig S. Fabrikant, PhD, ABPS Coral Springs, Florida Slide 2 Slide 3 Collaborative Practice: The Future is Now

241 Slide 4 What should be the role of the child(ren) How should they be represented in the process Why put the children first How do the children affect and effect the collaborative process How do the professionals make sure the children are heard and listened to How do we make sure age appropriate needs are met and maintained Slide 5 ---Provide some basic facts regarding children and divorce. ---Describe possible roles of children making them the primary and the priority focal point. ---Generate a discussion on how to make children of divorce the focal point. Slide 6 --Possibility of level of friendship with partner down the road. --Maintain best opportunity for co-parenting children.together. --Protecting children from harmful effects of litigated dispute resolution. --Maintain common circle of friends and extended family for self and children.

242 Slide 7 Children First.. Then Money.. Then Things.. Slide 8 Happy parents yield happy children Slide 9 In the best interest of the child

243 Slide 10 Courtroom judges decide using cookbook approaches. Collaborative process discussion can be specific to the children at hand and specific to developmental issues. Cookbook can stay on the shelf. Able to get both parent to work together toward common goals for the child. Slide 11 Important that a highly trained Mental Health Professional be used. Role to facilitate the collaborative process, using problem solving skills. The glue that holds the process together. MHP should also be trained in child/adolescent development and issues. In some states they are called coaches. Trained as Parent Coordinators. Slide 12 Mental Health Professional can take on role as the voice of the children Remind the divorcing couple, and respective attorney s that they are parent s first in this process. Goal to make sure children s needs are heard and met equally by both parents. Develop optimal parenting skills and strategies.

244 Slide 13 In most divorces children serve a definite purpose, and have a role.but are not a direct priority ---Thought of as collateral damage ---Source of conflict ---Tools to fight with or fight over ---Usually second place to finances Slide 14 Around 50% of all marriages end in divorce One out of 6 adults will divorce 2 or more times Half of all divorces involve minor children 40% of US children experience parental divorce and half of these will reside with single parent. Divorce rates are the highest in the South and lowest in the North East. 75% of males and 66% of females will eventually marry Slide 15 1/3 of all weddings form step families 38% of all US marriages were remarriages 1/3 of individuals who divorced in 2008 were re-divorcing million Adults have a step relationship 15% of men are stepdads 12% of women are stepmoms 16% of persons born after 1970 will marry, divorce, remarry and re-divorce to 2005 proportion of children living with 2 married parents dropped from 85% to 68% 40% of children will witness their parents divorce. 4 year average decrease in the life expectancy for children of divorce.

245 Slide 16 20% of children of divorce have significant problems higher the conflict the higher the percentage even with collaborative 10% of the children in general population have problems Slide 17 According the E. Mavis Heatherington.Most grown children of divorce become quietly more as emotional stable as children of continuously married parents. Slide 18 Children s issues typically the same regardless of the divorce process: Collaborative Cooperative Arbitration Mediation Litigation

246 Slide 19 Provide parents with developmental information, emotional insights, and guidance to meet the needs of the children. Support effective co-parenting. Parent Coordinator role of MHP Peaceful mediator for the child. Slide 20 Need to address the ages of the children Slide 21 Which needs to be addressed first: The needs of the child or the needs of the parents

247 Slide 22 Use of the Child based MHP can add up to 25% of the cost of the collaborative divorce. Slide 23 Need to learn how to look at the ex as a co-parent and not as a former flame Slide 24 Need to empower the children speak up to address their needs and in some cases for what they want. Need for parents to work together mutuality of decision making use similar methods if intact family.

248 Slide 25 Should the MHP meet with the child(ren) or at least speak to the child(rens) psychotherapist or counselor. who is the voice of the child? Slide 26 Depending on age can children address the group via the MHP, their therapist/counselor or some other independent professional Slide 27 There is still considerable debate in the field concerning actual affects of divorce on children (APA, 2004)

249 Slide 28 --Early intervention with the family --Collaboratively trained MHP who is a qualified parenting coordinator --Settlement oriented attorneys --Affective settlements --Use of parenting coordinators immediately at the beginning of the process not in final stages or at impasse --Handling and working with special needs children IEP, Medical, Social, etc. Slide 29 Normally a parents only spends minutes per ay actually listen to their children. The parent is the primary role model for their child. You need to love your children more then you dislike or distrust your soon to be ex. Slide 30 Parenting is forever Parent/Child relationship never changes

250 Slide 31 Two most important factors for children s adaptation to divorce: sensitivity commitment of parents to their children Slide 32 Parents are the biggest cause for children s struggle with divorce.they are also the biggest obstacle to achieving well adjusted post divorce children Slide 33 Connections parents have with there children are for life. The results of how parents are handling their children will be seen for life and will always affect and effect their children.

251 Slide 34 Both sides in the divorce have been and will remain the role model for your child(ren) what you do during the divorce process is teaching your child(ren) what to do and how to act in their relationships this can be with partners, friends, employers, and other significant contacts. Slide 35 Identification of needs: Emotional Behavioral Developmental Relationship with both parents Parental attitudes toward child Location (where are parents going to live) Children s knowledge of the marital issues and dissolution process Slide 36 You are getting divorced not you children Children should be at the center but not in the middle of parents issues. Maintain healthy patterns of communication with each other and with children.

252 Slide 37 Goal is to maximize parent child time-- with both parents Slide 38 Role of the non residential parent usually the father Real Parenting vs. Disneyland Dad Slide 39 Maximize quality parenting time

253 Slide 40 Overnights vs. Support Slide 41 Post Children (e.g. college) Other child related financial issues Slide 42 Constance Ahrons: Different types of post divorce parenting relationships: --Perfect Pals --Cooperative Colleagues --Angry Assistants --Fiery Foes --Dissolved Duos Last two need to develop a business relationship

254 Slide Forcing kids to take sides. 2. Using the attorney s as therapists 3. Spending 10K to get 1K 4. Taking Laissez faire approach 5. Refusing to mediate/collaborate 6. Demonizing the Ex. 7. Jumping into a new relationship Slide 44 Children need to know that their parents recognize the impact of the divorce on children s lives Listen to them their thoughts and feelings Demonstrate ongoing care and concern. Slide 45 Why empower children in the process?

255 Slide 46 How separation and divorce occurs sets the stage for how family organizes itself for years to come. Slide 47 All too often parents are protecting their own interests and not necessarily dealing directly with those of their children Slide 48 Many children get taught resiliency rather then dysfunction Collaborative increases this rate

256 Slide 49 Some of the research has shown that educational attainment of the parents can affect then child more then divorce especially in regard to alcohol, drug and cigarette use there is also a higher correlation with lower rates of employment for children Slide 50 Communication skills: Make sure to clarify ideas and presenting them in an effective and positive manner. Collaborative process should be a safe environment to discuss children. Slide 51 --Create a safe emotional climate --Model responsive conflict resolution/anger management --Help develop self regulatory skills --Label feeling --Encourage discussion of emotional charged situations --Open communication with and between parents

257 Slide 52 In divorce situations children s well being is directly related to how the adults communicate and function during the process. Slide 53 Children struggle for a lifetime with the residue of the decisions their parents made. Slide 54

258 Slide 55 The most harmful and profound effects for children of divorce are when the child reaches the level of maturity and struggles to form their own close relationships. Basically what happens now sets the stage for what will happen later. Slide 56 Co-parenting not Separate Parenting the most effective parenting style Authoritative parenting Collaborative Goal---the entire family not just components of Kids Adults Collaborative process allows to work through parent and child strengths and not weaknesses. Goal is post divorce parenting relationships Slide 57 When it comes to children: Creative problem solving. Direct Negotiation. Not all about winning and/or loosing.the process of agreeing.

259 Slide 58 It is important to develop a conflict free parenting relationship for the benefit of the children. Slide 59 An individuals life as a child is short and then they become adults.enjoy them now Slide 60 Children need to teach Parents how to Parent

260 Slide 61 My children have learned not become victims of circumstances, that they can prevail even through difficulty Children can learn how to become masters of time management Children can become more resilient and self reliant Slide 62 Collaborative Process with Special Needs Children

261 References American Psychological Association, An Overview of the Psychological Literature in the Effects of Divorce on Children, May Block, Jocelyn, et al, Children and Divorce-Helping Kids Cope with Separation and Divorce (November 2012), of Divorce. Chapman, Marvin L. (January, 2012) Collaborative and Divorce Coaching Outline. Collins, Russell and Collins, Laura, What researchers say about divorce, The Therapist, Nov/Dec 2006 Collaborative Law Institute of Minnesota, (2004) Children and Divorce: What do children need. Colorado Collaborative Divorce Professionals, Divorce and Children. Courtney, Janet (November, 2011) Children win in collaborative divorce: The role of. the Child specialist. Cox, Gay (2004) Collaborative Family Law: A path beyond winning. Deal, Ron L. (February, 2011) Marriage, Family and Stepfamily Statistics Debord, K. (May, 2006) The effects of Divorce of Children, University of New Hampshire Cooperative Extension Services. Divorce Services.com, Divorce myths uncovered: The 27 most common divorce myths. Emery, R. (1999) Marriage, Divorce, and Children s Adjustment, 2 nd. Edition, Thurgood Oaks, Ca. Sage Publications.

262 Endress, Marilyn (2006) The Collaborative Law Process, How It Works. Washington D.C., Sound Conflict Solutions. Glenn, Noral D.,(April 2012) Unpublished Manuscript, How good for children is the good Institute for American Values. Grbac, John. Mediation, Parenting Coordination and Collaborative Law. Leon, Kim, (March2004). Helping Children Understand Divorce, University of Missouri Extension. Heathington, EM (Ed) 1999, Coping With Divorce, Single Parents and Remarriage, New Jersey, Erlbaun Publishers. Order in the Court (2011) The impact of divorce upon children- A thesis study in grief, Trauma, and stress children face when parents divorce. Rubin, Randi, (November, 2012). Putting children first: The best gift divorced parents can give their children this holiday season. Separating together, the collaborative process with children. Tesler, Pauline H., Collaborative Law: Achieving Effective Resolution in Divorce Without Litigation, 2 nd Ed., American Bar Association, Trusch, Norma L. (2010) What every therapist should know about collaborative law. Family Law Attorney, Texas Collaborative Divorce Lawyer. Vari, Lisa Marie (2012), Stepping back from anger-protecting your children during divorce. Web, Stuart G. and Ousky, Ronald D., The Collaborative Way To Divorce, A Plume B Book, New York, 2006.

263 Controversial Issues For The Neutral Financial Professional Presented by Mike Lewis, CPA, ABV, CFF, CVA Adam T. Magill, MBA, AVA, CBA, CFFA

264 CONTROVERSIAL ISSUES FOR THE NEUTRAL FINANCIAL PROFESSIONAL Michael E. Lewis, CPA, ABV, CFF, CVA Adam T. Magill, MBA, CBA, CVA, CFFA

265 CONTROVERSIAL ISSUES Strategic issues Scope of work Ancillary or additional financial professionals Financial affidavits Education Process issues Meetings with parties Handling sensitive information Disclosure of private information What to do when not in keeping with Florida Law Timing between meetings How to share results

266 STRATEGIC ISSUES Scope of work Financial disclosure Proposed equitable distribution Income analysis Standard of living analysis Business valuation Forensic accounting

267 FINANCIAL NEUTRAL PROCEDURE FLOWCHART

268 FINANCIAL NEUTRAL PROCEDURE FLOWCHART, CON T

269 BRIDGING THE GAPS REFINING INFORMATION

270 BRIDGING THE GAPS BUSINESS VALUATION

271 BRIDGING THE GAPS FORENSIC REVIEW

272 BRIDGING THE GAPS PROCESS COMPLETION EXPECTATION

273 STRATEGIC ISSUES Ancillary or additional financial professionals When, where, and how to include others Financial affidavits Complete as part of process? Joint or separate? Reflect agreement or positions? Education Best way to present options Dictate how it s done? Discrepancy of knowledge, expertise, etc.

274 PROCESS ISSUES Meetings with parties Joint? How many? When? Handling sensitive information Forensic accounting Hidden assets/income Dissipation Disclosure of private information Financial Non-financial

275 PROCESS ISSUES What to do when not in keeping with Florida Law Professional/expert opinion Litigation experience Timing between meetings What to do? How to keep things moving? How to share results Group setting versus individual Share ahead of time? Professional fees

276 QUESTIONS?

277 Bringing Collaborative Practice to Underserved Families Presented by Honorable Alice Blackwell, 9th Judicial Circuit of Florida Lori Caldwell-Carr, Esq. Brenda London, Esq. Teresa F. Parnell, Psy.D. Audrey Simmons, CPA

278 The Role of Law in the Collaborative Practice Presented by Catherine Conner, Esq. International Academy of Collaborative Practice

279 34 Forrest Street Mill Valley, California (415) The Role of the Law in Collaborative Practice May 18, 2013 Catherine Conner

280 Table of Contents Charts... 1 Role Play Facts... 3 The Place of the Law in Collaborative Practice... 4

281 WHY TO BRING IN THE LAW GOAL IS TO INFORM PARTIES ABOUT THE LAW AS IT MAY BE RELEVANT TO THEM IN THE FOLLOWING RESPECTS: 1. Clarifies part of the reality parties face - Identifying likely outcomes in court (and possibly narrowing differences in expectations) - Providing possible legal protection 2. Provides an external reference point - Reflecting social standards - Embodying underlying principles 3. Strengthens the agreement - Safeguarding agreement against legal challenge - Reinforcing parties commitment to own choices REFERENCE POINTS FOR DECISION A. Sense of Fairness B. Interests, Needs of Parties and Others C. Relationship D. Law and Underlying Principles E. Practical and Economic Reality F. Prior Agreements G. Other * Formal, Explicit * Informal, Implicit Page 1

282 HOW TO BRING IN THE LAW GOAL IS TO EDUCATE THE PARTIES ABOUT THE LAW AND ITS IMPACT SO THAT THEY CAN DECIDE WHAT WEIGHT TO GIVE IT IN THEIR DECISIONS. 1. Preparation by professional team - Attorneys plan presentation together - Team planning for meeting - Pre-meeting preparation with parties 2. Structure and agree upon process - Set context law as one of the reference points, but not only one 3. Clarify the content of the law regarding: - The strengths of each side s legal position - The risks in each side s legal position - The practical consequences of going to court - Best prediction regarding a court s rulings - Impact of the rulings on their situation - Transaction costs 4. Deal with impact on the parties of introducing the law Assure parties understand the law Observe parties reactions and elicit their concerns Reminder law as only one reference point Page 2

283 Tom and Anna Tom, age 58, and Anna, age 49, have been married for 25 years and have two adult children -- Michael, age 24, and Erica, age 22. Prior to marriage, Tom s parents gave Tom half of the Estate, which had been in his family for one hundred years. Anna moved to the Estate when they married. Fifteen years ago, Tom s parents gifted the other half to Tom and Anna. The "Estate" consists of five acres with a large family house (where the family lived together and Tom now lives) and a small renovated barn where Michael lives rent free. Michael is working at his first job after college, earning approximately $2,500 per month. Both residences have substantial deferred maintenance. The estate is owned without a mortgage and is now worth $800,000, having tripled in value from the $250,000 it was worth when they received it 15 years ago. The house is large and comfortable; a comparable one would cost at least $3,000 per month to rent. The chicken coop is not a legal rental, but could be rented for $900 per month. Tom has worked for 25 years as a physician for a community health clinic and is earning a salary of $80,000 gross per year ($6,667 per month). His net income without consideration of alimony is approximately $4,500 per month. His budgeted expenses are $3,500 per month, although he could reduce that to $3,000 if necessary. The clinic at which Tom works is financially troubled, although recent grants will provide extra funding. It is unlikely that Tom will receive any pay raises. Anna has worked for the last four years as a flight attendant for an airline, earning $42,000 gross per year, consisting of $30,000 ($2,500 per month) for her regular flights and $12,000 ($1,000 per month) per year for overtime for extra flights. It is not clear whether overtime will continue to be available. Her net income is approximately $2,000 per month without overtime and approximately $2,700 per month with overtime. Her budgeted expenses are $4,500 per month. While they were living together, all of Tom's salary was spent on household and family expenses. Some of Anna's salary went for these expenses and "extras" for the house and herself, but she was also able to save some money, particularly from the overtime pay. Anna recently moved to an apartment that costs $1,500 per month. Their assets are: The Estate $800,000 Anna s savings $ 40,000 Tom s 401k $100,000 2 old cars of equal value Household furnishings approximately $15,000, of which $8,000 are antiques from Tom s family After years of fighting and marriage counseling, six months ago Tom and Anna mutually decided to separate. Tom and Anna signed a collaborative agreement four months ago. They have had three meetings with their collaborative team and one meeting with the neutral mental health professional only to work on communication and processing the end of the marriage. They have gathered the factual information about their assets, incomes and budgets for expenses. Tom plans to continue to live a simple life on the Estate. He is very clear that the Estate should remain in the family and ultimately be passed on the Erica and Michael for them to enjoy as he has. Anna wants to be out from under the spell of The Estate. She believes that Erica and Michael would be better served by supporting their independence rather than tying them to expectations about continuing The Estate. She is fine with Tom keeping the Estate as long as she receives her share now to buy a new home as she builds her new life. Page 3

284 THE PLACE OF LAW IN THE COLLABORATIVE PROCESS In order to discuss the proper place of law in the collaborative process, it can be helpful to keep in mind a few distinctions about the nature of law. First, law need not be binding. While some parties may automatically assume that the legal measure must be the standard, that choice can too readily be made from lack of awareness of any other measure. In most matters that come to collaborative process (not all), the law gives the parties the freedom to reach enforceable agreements that differ from what a court would do as long as they mutually agree and contractually bind themselves to that outcome. Indeed, an essential feature of collaborative process is that it gives parties the power to make choices independent of the control of law. They can, instead, use their own sense of fairness, or any other mutually acceptable principle, as a basis for decisions. They can decide the importance they wish to give the law. Second, law in collaborative process generally means a prediction of what a court would decide were the case to go to court. The law as written may also be important, but it is the law as applied by courts that is usually most relevant in the collaborative process context. Indeed, that is precisely why parties and their lawyers often look to the law -- to understand what would happen in court if the issue were not resolved in collaborative process. Third, as most lawyers know, law is not necessarily an absolute standard. Indeed, when lawyers predict what a court would do (including collaborative lawyers), they are making guesses at how the legal process would work itself out. Traditionally, a lawyer s tendency to see the case from their role as advocate can lead them to predict in a manner slanted to their client. Much protracted litigation results from the differences in how lawyers view potential outcomes. Fourth, law including its uncertainties is knowable. It is often not possible to conclude with certainty how "the law" would treat a particular problem. Many issues have a number of variables that can lead to quite different results in the adversary system, given the interplay between lawyers and the application of relevant rules by a court. The person of a judge, including his or her tendencies, may also influence the law's application. However, this does not mean (as some lawyers sometimes suggest) that law is always unknowable. In some areas there can be a fair amount of certainty what a court would do. And, even when there is not certainty, lawyers (when they are honest) can predict likely outcomes that assess the probabilities and degrees of certainty in their predictions. One of the challenges to collaborative professionals is to work in ways that will lead to greater convergence in their different assessments of the likeliness of legal outcomes, while presenting the possibility of legitimate differences in assessments. When it comes to the question of actually dealing with the law in collaborative process and its relevance to a particular case, the collaborative lawyer must walk a thin Page 4

285 line between viewing law as determining outcome or considering it irrelevant. Both possibilities pose real dangers. Where law controls, it can usurp the parties' own responsibility and sense of fairness. Where it is ignored, the parties miss any value that it might have in aiding them to reach a fair agreement. Another, more favorable, possibility exists. Given the appropriate attitude on the part of the parties and the collaborative professional, law can play a role in the process where it is neither controlling nor irrelevant. Rather, law is considered a relevant factor. The collaborative professionals own views of the importance of law, the parties' predispositions, as well as their understanding of applicable law through their lawyers have critical bearing on reaching for that balance. So the collaborative professional can help the parties consider law not primarily as a set of necessary applied rules, but as providing a relevant reference point, both in terms of a practical alternative and as an expression of societal norms and, perhaps, some underlying principles. When it comes to including the law in the collaborative process -- without it becoming viewed as controlling or irrelevant -- it is important that the collaborative professionals are aware of, and able to dialogue with parties about the different possible roles that law can have in collaborative process. Educating the parties about the possible relevance of law can enable the collaborative professionals and parties to deal directly with its impact. Law can have a variety of roles and serve different purposes. 1. LAW AS PART OF REALITY PARTIES FACE. Many people will want to compare the possible solutions they might arrive at in collaborative process against their alternatives -- what they think might happen were they to go to court. This is traditionally called measuring the BATNA the best alternative to a negotiated agreement. Even when parties are not measuring the alternative precisely, it is valuable for them to have some sense of the legal reality since whether they focus on it or not, it is a backdrop to the decisions they are making. Some less informed parties may also benefit from knowing the protections that the law and courts can provide. 2. LAW AS A REFERENCE POINT FOR DECISION. Law can also provide one independent measure for coming up with possible solutions. For some parties, knowing how courts and society views their dispute is important in coming to their own conclusions. 3. LAW AS AN EXPRESSION OF UNDERLYING PRINCIPLES. In addition to being used as a concrete measure, "the law" may point to relevant principles or values that the parties might want to consider in approaching their own resolution of the issues. Here the legal result is not as important as the principles that underlie the result; these may help inform the parties own sense of fairness. 4. KNOWING THE LAW CAN STRENGTHEN THE PARTIES COMMITMENT TO THEIR AGREEMENT AS WELL ITS ENFORCEABILITY. Knowing the law and making personal choices that differ from the legal standard can also strengthen the parties Page 5

286 commitment to the agreement they choose. Clear knowledge of the law can also strengthen any agreement legally (rather than parties later claiming that they would have made different choices had they known the law). In some jurisdictions, a party s ignorance of the law can be viewed as a ground for upsetting an agreement negotiated in collaborative process. How the law can be brought into collaborative process in a way that enhances the parties understanding of their situation is a challenging subject that cannot be summarized briefly. It is essential that the collaborative professionals focus on the central goal which is to educate the parties about what a court might do so that they can make informed choices about whether a resolution arrived at through the collaborative process serves them better than their alternatives. The collaborative lawyers can usefully share their views of what might happen if the dispute were to go to court. The task is to present the information without the task simply turning into a legal argument. While counsel s views may differ, depending upon who they represent, the agreed upon task can be to reach as much convergence as possible between the respective views so that the parties are not left prisoner to their attorneys sharply divergent viewpoints. The collaborative professionals can help the parties keep in mind three aspects of educating the parties about the law: 1) The strengths of each side s legal position; 2) The risks of each side s legal position; 3) The practical consequences of going to court. Page 6

287 Using Research to Develop Competency of the Mental Health Presented by Randy Heller, Ph. D. Linda Solomon, LMFT

288

289 Using Research to Explore Competency and The Role of the Mental Health Professional in Collaborative Practice: Development Toward Successful Integration on the Team Randy Heller, Ph.D., LMFT, LMHC Linda Solomon, LMFT

290 Objectives 1. Participants will define and describe the composition of the Interdisciplinary Collaborative team: the roles and responsibilities of each professional on the team and the structure of the process. 2. Participants will identify the distinctions between the role of the Collaborative Mental Health Professional and the therapist. 3. Participants will identify the discipline-specific and shared competencies necessary for successful integration of the MHP on the interdisciplinary team. 4. Participants will understand the ethical/professional challenges faced by the Collaborative Mental Health Professional. 5. Participants will identify the necessary components of effective team building.

291 Cornerstone of Collaborative Process The Paradigm Shift From Therapist to Coach or Neutral Facilitator From Litigator to Collaborative Lawyer From Forensic Accountant to Neutral Financial Professional

292 Interdisciplinary Collaborative Family Law We cannot live only for ourselves. A thousand fibers connect us with our fellow men. - Herman Melville

293

294 Collaborative Mental Health Professional Family Collaborative Attorneys Collaborative Financial Professional

295

296 The Role of the Collaborative Mental Health Professional

297 Macfarlane (2005) found: MHP involved in the process could prove useful Potential challenges: Wide-range acceptance of the participation of a MHP implementation of the team model. Gap in the research substantiating the knowledge, skills, attitudes, and actions required of the MHP to competently fulfill their role on the team. Limited information in the literature about how the team must join together to integrate the expertise of professionals from these various disciplines.

298 It is impossible for a man to learn what he thinks he already knows Epictetus Goal To develop a theory about the knowledge, skills, attitudes, and actions the competencies necessary for the mental health professional (MHP) to effectively practice in Interdisciplinary Collaborative Family Law.

299 PARTICIPANTS Twenty-nine interviews were conducted with representatives from collaborative practice groups across the United States and Canada. Four of these interviews were conducted with Pioneers (two lawyers and two MHPs) in the field of Collaborative Practice : Stuart Webb from Minnesota, Pauline Tesler and Peggy Thompson from California, and Linda Solomon from Texas. The Pioneers constituted a special research group whose interviews served as a reflection and comparison point for data collected from the other 25 participants.

300

301 RESEARCH QUESTIONS What expectations do participants hold about the necessary competencies for MHPs to successfully do this work? What other knowledge, skills and abilities will MHPs have to possess and exemplify in order to be considered competent to participate on the collaborative team?

302 VARIABLES The emergent theory was based on several variables: What do the pioneers say about their intentions of ICFL? What do participants say about competencies of the MHP? How does that fit with the domains of the core competencies as defined by the AAMFT task force (Nelson et al., 2007) and Sperry (2010) for mental health practitioners? How does that fit with the already established Protocols of Practice for MHPs in this field?

303

304

305 THE THEORY Success in ICFL is predicated on competent professionals from multiple disciplines (MH, Law, and Financial) who effectively develop and integrate their shared attitudes, and complementary skills and knowledge on the interdisciplinary teams.

306 MHP COMPETENCIES CLINICAL SKILLS Self of the Therapist Assessment and Evaluation Communication Relationship Building Intervention Planning Legal/Financial Awareness

307 SELF OF THE THERAPIST

308 SELF OF THE THERAPIST She is able to communicate to people, particularly clients in a way that you won't be offended by, and she ll be able to call you out and call you on the carpet in a way that's non-confrontational or in a way that you can accept it. I have heard from clients who have expressed that kind of idea that she doesn't mess around or mince words, but when she speaks there is some sort of inherent authority about it and so I also think that is the way that she views her role and she's very clear that she is there for the group. (L8)

309 ASSESSMENT AND EVALUATION

310 ASSESSMENT AND EVALUATION Interviewer: When you speak about human dynamics and the MHP being able to assess human dynamics, can you talk about that and the skill sets that foster their ability to do that? MHP 11: When I speak about dynamics, I am speaking about the emotional readiness of the parties, how they process information, how they communicate. I m talking about communication skills on a different level the meta-level. When it comes to personality, I m not talking about diagnosis; I am talking about personality style. That has a lot to do with how they interact. I also think it s important to think about where they are in the mourning process. I think about divorce as the death of a marriage. Often one person is ready and the other one is not. We have a saying, You can only go as fast as the slowest member of the couple.

311 COMMUNICATION

312 COMMUNICATION The first thing that comes to mind is that it is the team that I have a commitment to, as does every other team member and that if another team member is saying or doing something that in my opinion is having a negative impact either on the process or the on the clients comfort level, I have to step up and say or do something about it. I have to - that's my job. I think the art is as to what I say, when I say it and where I say it in the debrief, in front of the clients, in private, in an - that's the art of it all that's my job. They look to me to facilitate and keep things moving and they all have an expectation that I'll deal with the elephants in the room (Linda Solomon, Neutral MHP, Pioneer Trainer)

313 Co-Parenting Relationship

314 RELATIONSHIP BUILDING BETWEEN PARENTS I will also work with the client on self-identifying the parenting strengths and weakness, where they are in their co-parenting relationship, and what they are going to need to do to move that co-parenting relationship forward in a positive manner. I don't do the work to get them there, it s just an identification process that's all done with both parents together and getting them dialoguing about how they see their coparenting relationship, how they see each other as parents, and where they are in developing the kind of coparenting relationship they want. (MHP 7)

315 Intervention Planning

316 Intervention

317 INTERVENTION Interviewer: Can you talk about the difference between doing therapy and being a coach? MH10: Well what I say to people I say any intervention is a therapeutic not destructive construct. That's where I am with that. So, whether we call it therapy or not, we are doing something. Surely we are intervening in these peoples lives. Then how am I get to make the most constructive intervention for this person, give them the opportunity for growth? I explained to my clients, crisis is a great time to grow and change, and as a coach I want to help you attain what your vision is of your future. (Peggy Thompson, Ph.D., Divorce Coach, Trainer, and co-creator of the Two Coach full team model).

318

319 SHARED SKILLS INTEGRATED SKILLS/ TEAM PLAYER Fit Relationship Building Team Communication Team Organization

320 Fit

321 FIT MHP 10: When I have a client, I refer them to an attorney that I think fits them. Interviewer: So how does that work? A client comes to you, and you refer them to the attorney? Do become their coach? MHP10: I'm their coach and I say, Here are three attorneys. I try to pick people that I think will fit them, and I tell them why I think this will fit. I say, I think you might match well with them. You interview them and let them let me know. I think that bond is really important you know in therapy that's a critical part.our relationship with this person. Interviewer: So it's that connection the fit I think that's what you are you talking about with clients and with the team. MHP10: Absolutely! (Peggy Thompson, Founder, 2 Coach Model)

322 FIT

323 FIT For me, it just depends so much on what the case is about, and who the people are, and what their personalities are. In a case I've got right now I'm representing a woman who is among the neediest of people I have ever worked with and without our psychologist I'd be suicidal. I couldn't deal with this woman day in and day out dealing with all of her issues listening to the same stories over and over again about her husband's girlfriend. I couldn't do it. I'm not skilled enough to deal with it or patient enough to deal with it. It really is way outside my area of expertise, but she [the MHP] is funneling all of this into effective communication. (L7)

324 FIT OF TEAM MEBERS Until recently, the lawyers would be determining who should be at the table I have my skills and my processes and dovetail my skills with collaborative practice. Those cases I take now feel more like a decision and that's why I first have a conference call with the two lawyers because if I don't feel like I could work with the two lawyers successfully, I'm not going to be able to provide good service to the client. I want to know what the expectations of the lawyers are of me and I want to know if I can successfully have a reasonable chance of meeting their expectations. If I can, we will talk about those expectations and skills I bring to the table, and if there's a match of skills with what they're seeking if it is, I will have their clients give me a call. (MHP 6)

325 Relationship Building

326 TEAM RELATIONSHIP BUILDING When we have our social gatherings, we meet people [professionals] who we never met before and maybe sit next to them and talk to them and find out about them. When I have more of a personal relationship with somebody I know whether I could work with them. (Stuart Webb, Founder, CFL) That's why I stay in the [practice]group. It's not just my clients; it's the collegial relationships I've developed in this group. If I'm going to be part of this group I want it to function as best it can. (MHP 9)

327 Team Communication

328 TEAM COMMUNICATION As a team member, I have accountability, I have to communicate with them, I have to think with them, I need to ask them, we need to brainstorm together (Linda Solomon, Neutral MHP, Pioneer Trainer)

329 TEAM ORGANZATION

330 TEAM ORGANIZATION I take on sort of case management tasks, again I don't mind doing that, but think again by nature of our training we get case management training, and so, I think it fits very well for us to pay attention to the pacing of the process. I also pay attention to if we are ready for a meeting, are we having to meetings to soon, too far apart, what is the proper agenda for this meeting and the addressing of issues between meetings?

331 SHARED KNOWLEDGE Cultural Influences Background and Education Law/Financial/MH/CFL Seasoned Professionals Collaborative Training Training in Other Areas (interest- based negotiation, mediation, etc.)

332 Cultural Influences

333 CULTURAL INFLUENCES Interviewer: What is your cultural and ethnic background? L4: I grew up in a small country town in Iowa with about 1,000 people and did all my high school and elementary school there. Interviewer: Do you have any idea how that might have influenced your intentions and your ideas about Collaborative Practice? L4: I think so because in that particular small town the whole idea was to get along with each other and like each other--even me in the drugstore we operated your main job was to treat people equally, serving people and serving the community was really an essential part of my upbringing (Stuart Webb, Founder, Collaborative Family Law).

334 Background and Education

335 BACKGROUND AND EDUCATION I don't think the specific credential of the mental health professional matters very much what does matter is having plenty of experience in family systems and ideally experience in high conflict divorce work. And also having a gift, I suppose, is a better way to talk about it a willingness to be a beginner this work calls on us in all three professions to be beginners and to be willing to share the sandbox and learn a whole new set of concepts and skills, including the mental health professionals. Just like the lawyers, they need to learn teamwork so it's a combination of particular kinds of education and experience. (L10, Pauline Tesler, Co- Founder and first president of the International Academy of Collaborative Professionals, and a prominent writer and trainer)

336 KNOWLEDGE ABOUT FINANCES AND THE LAW

337 KNOWLEDGE ABOUT FINANCES AND THE LAW STUART WEBB Interviewer: How important do you think it is that mental health professionals be informed about the law? Now in other words, sometimes the client asks the therapist about the law and they ask the lawyers about the emotional issues. They ve got it backwards. No, they don't really. They really don't have to... It is their [the MHP] job just to keep the communication going, and the attorneys need to sort out that other stuff. (L4) PEGGY THOMPSON I think knowing where the pitfalls are. It s like cross training in terms of not getting engaged in legal stuff. It's helpful to know what the rules are. The attorneys get upset if you make certain statements where you can throw things off by your statement, and I think that's particularly right in the beginning where people want to know things, and when you hang out with lawyers you know a lot of legal phrases so stay out of those areas and always refer them [clients] back [to their lawyers]. (MHP10)

338 Interviewer: When you consider the concepts that you want the mental health professional to have, how important is it to you that they understand finances? FP 2: It s irrelevant; that's not what they're there for. In fact, that was the problem in the case that I told you about when the guy thought he could do it all, and it was awful. I mean there are cases where he was giving advice to clients that was just dead wrong: information that should have been coming from the lawyer or the financial professional This particular case fell out of collaboration. so it was actually counterproductive in many ways.

339 My personal opinion is that it's very important they know them [legal terms]...to be involved in this process and not know what is being discussed, it really creates a problem. If for instance there is a joint meeting and we re talking about mandatory disclosure, equitable distribution, division of assets and liabilities, and maybe there's a discussion about the house and there may be an emotional tie to the house, that's important. You have to have some level of knowledge to be able to help. (L10)

340 SEASONED PROFESSIONALS Interviewer: Would you speak more about what you said about knowing enough to know what you don t know? MHP 9: It takes practice..i think this is the kind of work you need to have some kind of seasoning. You need to be in the field for a while, and I'm going to stop short of saying you need to have had children or that kind of stuff, but you need to have some experience under your belt and to understand number one how life altering divorce is even when both parties wanted it. Even in the best circumstances, divorce is life altering. (MHP 9) We really want professionals who are going to be very experienced in dealing with family members in the divorce process. We want folks who engage in a lot of counseling. It could be even all types of family counseling; working with kids working with families, working with individuals. We definitely will want therapists who are systems oriented. (L5)

341 When I'm training I stress that in my view Marriage and Family Therapy is an essential discipline for divorce coaching. If you're not trained as a marriage and family therapist then you need to access it[this information] in the collaborative training. You must have a systemic view of your families and not just being in an individual psychology frame.i reference the systems perspective throughout. I urge attorneys to give up their fiction that these are individuals with no connections to others and to see the family as a group that is essential. (MHP3)

342 SHARED ATTITUDES

343 SHARED ATTITUDES Trust Professionalism Common Values Playing on a Team Ethics Honesty and Integrity

344 TRUST It would be a challenge to bring in somebody that that I didn't know or haven't worked with before. I mean, that's just always harder trust among the professionals is such a big deal and I mean you really want to know this person knows what they're doing. So for instance [MHP] could suggest probably some of the most outlandish wacky thing on the case, but if she suggested it, I mean I'm good to go with it because I worked with her so much and I trust her. But if somebody else is there and they're kind of suggesting something that to me doesn't seem to make sense than I'm gonna have some concerns about that. (L2)

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346 PROFESSIONALISM WITH THE COUPLE I feel tremendously responsible to do whatever we can to support the healthiest possible future for the family, particularly for the children. We know that unresolved conflict is like acid for them in their child s emotional life, and for me, that's one of the great possibilities of collaborative practice. (MHP3)

347 PROFESSIONALISM ON THE TEAM

348 PROFESSIONALISM ON THE TEAM There is no longer just a responsibility to I. I still have that responsibility first and foremost to my licensure board, but I now have a responsibility of we to the team. As a team member I have accountability I need to suit up and show up when I said I was going to. It's different It's a different mindset to go from an I to we (Linda Solomon, Neutral MHP, Pioneer Trainer)

349 TEAM PLAYER

350 TEAM PLAYER It's a determination to work in a genuine team...it s a kind of a determined authenticity and transparency and honesty and willingness to be held accountable in a collegial mode. The professionals have an express understanding that nothing s working if the team isn't working. There is no I'll go do my thing, you do yours, and I won't worry about it. There is no I'm an MHP, and I'll do my job and if you're not good at your job, not a problem. (Pauline Tesler, Co-Founder ICFL)

351 This is trapeze artistry without a net. Awareness, attention, listening, and transparent communications become the currency of the integrated team's planning and debriefing sessions, where lawyers who are looking for better ways to work at the collaborative table will have plenty of help from their colleagues in figuring out how to do so. -Tesler, 2008, p. 260

352 ETHICS L5: We have to do it in such a way as it [collaborative practice] doesn t allow any type of abuse or any type of ongoing conduct that s outside the parameters of appropriate conduct and fairness, so that s really not any specific guidelines. It s more or less everybody on the same page that is. If we are going to have a successful outcome, it must be fair as it can be firm for fairness. If somebody acts inappropriately or makes a mistake, we re going to pick them up. We need to explain to them how what they are doing is inappropriate and will not create a good result. When they do that too many times, it wouldn t work with these folks if we were to judge them.

353 ETHICS I see that as my ethical responsibility to really keep the parents on the hook for the values about themselves as parents and their own vision of themselves as parents, and to really educate them to the absolute reality that their conflict is a huge risk factor for their children no matter what their marital status. I feel that is the opportunity that collaborative practice brings them. (MHP 3)

354 HONESTY AND INTEGRITY Interviewer: In this research process I am hearing a lot about integrity. I am wondering what you think about that idea. L7: I think that's a great point, your point about integrity is a very good one. I explained to my client that in my opinion collaborative divorces allows everyone to go through this process with dignity and integrity and sit in the same pew at your daughter's wedding.

355 SUCCESSFUL INTERDISCIPLINARY PRACTICE Unlike the incompetents, real experts... are intellectually honest and brutally self-critical with themselves. They examine their mistakes squarely, deconstruct them, and relentlessly search for the impeccable. Some professions force this contemplation, even if it isn't welcomed or pleasant. A smoothly-oiled, integrated interdisciplinary collaborative team works in just that fashion, examining mistakes promptly and forcing contemplation of one's own failure to master the choreography or to perform the dance skillfully. (Tesler, 2009, p. 662)

356 IMPLICATIONS FOR TRAINING Current training programs center on the professional-client process and interactions. This advanced training is focused on the development of each discipline as it pertains to effective and efficient practice relevant to successful integration of the various parts into the whole team process.

357 WAYS TO WORK COLLABORATIVELY WITH THE ENTIRE TEAM To identify relationship patterns that are interfering with successful resolution of issues, while simultaneously attending to the interactions of team members and the divorcing couples to develop skills for effective communication, problem solving, interpersonal, relational, relaxation and emotional self-regulation techniques. Opportunities to practice the implementation of these techniques will be provided through the use of interaction with each other

358 PUTTING THE PIECES TOGETHER

359 COLLABORATIVE TRAINING As interdisciplinary training programs are refined and further developed, it will be important to determine the correlation between strengthening Collaborative teams and successful outcomes.

360 DEVELOPING COMPETENT TEAMS IN INTERDISCIPLINARY COLLABORATIVE FAMILY LAW: AN EQUINE ASSISTED APPROACH A Model for Advanced Training of Interdisciplinary Collaborative Practitioners TEAM: Training Together to Enhance Competency and Achieve More

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362 Role of Neutral Financial Professional in Maintaining Integrity of Collaborative Process Presented by Edward Sachs, CPA

363 The Role of the Neutral Financial Professional in Maintaining the Integrity of the Collaborative Process

364 Would you practice as a collaborative professional without malpractice insurance? The parties understand that by agreeing to this alternative method of resolving their dissolution issues, they are giving up certain rights, including the right to formal discovery, formal court hearings, and other procedures provided by the adversarial legal system. The parties have chosen the Collaborative Process to reduce emotional and financial costs, and to generate a final agreement that addresses their concerns. *Declaration of Principles of Collaborative Law Does that absolve you?

365 Attorneys Role Provide an Organized Framework Help Communicate Identify Issues Ask Questions Make Observations Suggest Options Check the Workability of Proposed Solutions *Declaration of Principles of Collaborative Law

366 The Participation Agreement Working as a Collaborative Team member, the FP s objective is to provide financial services as requested with the goal of assisting the Clients in achieving what the Clients perceive as their best possible outcome under the circumstances. Specifically, the FP s duties may involve the following: Assisting the participants in better understanding the financial issues unique to the Clients circumstances; Assisting the participants in gathering and organizing financial information concerning the clients marital assets and liabilities, including preparing a draft of a joint inventory and/ or schedules of identified property; Assisting the participants to identify, understand and, if necessary, trace separate property, reimbursement or economic contribution claims; Assisting the participants in gathering and organizing financial information concerning the Clients income and expenses;

367 Conclusive Duties Preparing a financial projection of future estimated client cash flows; Developing federal income tax estimates for the Clients; Providing tax-effected estimates of the value of marital property; Preparing present or future value calculations on marital assets and/or liabilities; Assisting the participants by developing and analyzing options for allocation of the Clients income and expenses; Assisting the participants by developing and analyzing options and scenarios for a division of the Clients marital estate; Assisting the participants in negotiating a financial outcome acceptable to both clients.

368 The Collaborative Agreement The parties acknowledge that by using informal discovery, they are giving up certain investigative procedures and methods that would be available to them in the litigation process. They give up these measures with the specific understanding that both parties make full financial disclosure of all assets, income, liabilities and other information necessary for an equitable settlement. Participation in the Collaborative Process, and the settlement reached, is based upon the assumption that both parties have acted in good faith and have provided complete and accurate information to the best of their ability.

369 Mandatory Disclosure FOR INITIAL, SUPPLEMENTAL, AND PERMANENT FINANCIAL RELIEF: a. Financial Affidavit b. All personal (1040) federal and state income tax returns, gift tax returns, for the preceding 3 years; IRS forms W-2, 1099, and K-1 for the past year if the income tax return for the past year has not been prepared.

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375 More Mandatory Disclosure Pay stubs or other evidence of earned income for the 3 months before the service of the financial affidavit. A statement identifying the source and amount of all income for the 3 months before the service of the financial affidavit, if not reflected on the pay stubs produced. All loan applications and financial statements prepared for any purpose or used for any purpose within the 12 months preceding the service of the financial affidavit. All periodic statements for the last 3 months for all checking accounts and for the last year for all savings accounts, money market funds, certificates of deposit, etc. (likely to be extended) All brokerage account statements for the last 12 months.

376 More Mandatory Disclosure Most recent statement for any pension, profit sharing, deferred compensation, or retirement plan (for example, IRA, 401(k), 403(b), SEP, KEOGH, etc.) and summary plan description for any such plan in which I am a participant or alternate payee. The declarations page, the last periodic statement, and the certificate for any group insurance for all life insurance policies insuring my life or the life of my spouse. All health and dental insurance cards covering either of me or my spouse and/or our dependent child(ren). (Have them get the insurance breakdown. You know we will need it!) Corporate, partnership, and trust tax returns for the last 3 tax years, in which I have an ownership or interest greater than or equal to 30%. All credit card and charge account statements and other records showing my(our) indebtedness as of the date of the filing of this action and for the prior 3 months. (likely to be extended)

377 Going back to Fifth Grade Algebra A+B=C One of the most basic reviews of the parties financial status takes us back to simple algebra. The first goal in any financial analysis is to see if the finances pass the smell test. Basically put, if the parties net income exceeds their lifestyle, then the parties net worth should be increasing every year. Usually, in divorce matters, the reverse is seen; hence, net income is less than the lifestyle. If this is the case, there should be evidence that either assets are being liquidated or debt is increasing.

378 Bank Statements A review of the deposits and withdrawals should be performed to determine the average monthly cash flow of the parties. Look for transfers of money between bank accounts as well as electronic transfers in and out of the accounts. When cancelled checks are provided look at where checks to cash or checks made payable to the parties are being deposited. Undisclosed bank accounts can often be found through a review of these records.

379 Credit Cards Determine the average monthly spending through credit cards. Also review charges for clues of asset purchases, travel to secret assets, or activity related to other business activities.

380 Cash flow analysis Compare the average monthly cash flow from the bank statements plus the average monthly credit card spending to the total expenditures listed in the financial affidavit or being suggested as the lifestyle.

381 Principles of Collaborative Law Cooperative, confidential and voluntary Participation with Integrity Negotiate in Good Faith Honesty

382 Edward S. Sachs Director of Litigation & Valuation Services 999 Ponce de Leon Boulevard Suite 625 Coral Gables, FL (305) Ext. 225 Facsimile: (305) Broward: (954)

383 Building a Successful Collaborative Practice Group Presented by Wendy Aikin, Esq. Thomas Behan, CPA, CVA, ABV, CFE Honorable Alice Blackwell Barbara E. Kelly, Ph.D

384 5/16/2013 Building a Successful Collaborative Family Practice Group Barbara E. Kelly, PhD Wendy L. Aikin, JD Thomas V. Behan, CPA Honorable Alice L. Blackwell S Our History S The Process 1

385 5/16/2013 Unconscious Competence Unconscious Incompetence Conscious Competence Conscious Incompetence The Process Commitment and vision S Making the commitment S Identify the people needed for the board S Unanimity of vision 2

386 5/16/2013 The Process All professional disciplines treated equally Inclusive approach to membership versus exclusive approach Inclusivity and equality Collaborative Family Law Group of Central Florida 3

387 5/16/2013 The Process Quality S Training S Relationships STeaching The Process 4

388 5/16/2013 Organizational issues The Process Developing and fostering momentum S Actively recruited the individuals we wanted trained and as members S Clear message S Quality meetings S Responsive to members 5

389 5/16/2013 The Process S International Academy of Collaborative Professionals (IACP) S Law schools S Local bar S Other professional groups Access outside resources The Process 6

390 5/16/2013 Areas of improvement S Questions? 7

391 The Uses of Life Insurance and Annuities in Collaborative Practice By Increasing Settlement Options Presented by Scott F. Barnett, J.D., LLM Rick D. Miller, CLU, ChFC, RHU

392 THE PLANNING PARTNERS INSURANCE, ANNUITIES & QUALIFIED PLANS RICK D. MILLER, CLU, ChFC, RHU, Independent Agent SCOTT F. BARNETT, J.D., LL.M. (TAXATION) HAYWARD PLACE TAMPA, FL VOICE (813) Rev. 4/4/2012 T HE P L A N N I N G P A R T N E R S INSURANCE, ANNUITIES & Q UALIFIED PLANS

393 ABOUT INSURANCE & ANNUITIES A SERIES OF PRESENTATIONS AND MATERIALS FOR EDUCATION AND ORIENTATION T HE P L A N N I N G P A R T N E R S INSURANCE, ANNUITIES & Q UALIFIED PLANS

394 USES OF INSURANCE & ANNUITIES IN DIVORCE AND ENHANCING SETTLEMENT by RICK D. MILLER, CLU, ChFC, RHU, Independent Agent SCOTT F. BARNETT, J.D., LL.M. (TAXATION) 2012 All Rights Reserved SCOTT F. BARNETT, J.D., LL.M (TAXATION) and RICK D. MILLER, CLU, Ch.FC, RHU ABOUT INSURANCE & ANNUITIES T HE P L A N N I N G P A R T N E R S INSURANCE, ANNUITIES & Q UALIFIED PLANS

395 USES OF INSURANCE & ANNUITIES IN DIVORCE AND ENHANCING SETTLEMENT REQUIRED DISCLOSURE INFORMATION RICK D. MILLER, CLU, ChFC, RHU is the independent agent responsible for this presentation. STATES WHERE LICENSED: Florida Georgia PRODUCTS HE IS LICENSED TO SELL: Life Insurance Annuities Disability Insurance Health Insurance INSURANCE AND ANNUITY ISSUER APPOINTMENTS: Guardian North American Allianz American National American Equity Genworth ABOUT INSURANCE & ANNUITIES T HE P L A N N I N G P A R T N E R S INSURANCE, ANNUITIES & Q UALIFIED PLANS

396 REQUIRED DISCLOSURE INFORMATION (cont.) This is not intended to be a sales seminar. The purpose of this seminar is to provide you with general information on Uses of Insurance & Annuities in Divorce. There will be an opportunity to schedule an appointment for an individual consultation at the end of this seminar, which may result in a recommendation of specific financial products that may help you achieve your financial goals. There is no obligation to schedule an appointment or purchase a product. During the course of this presentation or in follow-up appointments, you may hear more about the following types of products. If so, please keep in mind: Qualified and Non Qualified Annuities: Owners of non-qualified annuities are not required to take mandatory distributions due to age. Owners of qualified annuities are subject to the minimum required distributions at age 70½. Fixed Index Annuities: Only guarantee premium against market downturns since a customer can lose premium due to fees and charges of the product itself, particularly if they surrender in early years. Life Insurance: In exchange for the death-benefit coverage provided, all life insurance products include various costs, such as the cost of insurance, surrender charges, monthly expense charges and premium loads (where applicable). Costs vary according to the product selected. ABOUT INSURANCE & ANNUITIES T HE P L A N N I N G P A R T N E R S INSURANCE, ANNUITIES & Q UALIFIED PLANS

397 Why Life Insurance & Annuities are Popular Insurance Policies and Annuity Contract premiums, earnings and death benefits are guaranteed by the issuing companies. Insurance Policies and Annuity Contracts are issued by companies regulated by State Insurance Commissioners. The Insurance and Annuity Companies are audited by the State Insurance Commissioners. The Insurance and Annuity Companies are required under the regulation of State Insurance Commissioners to maintain reserves to assure payment of benefits to contract holders. Earnings are income tax deferred. Market fluctuations do not impact returns (unless a variable product is selected). In Florida, Life Insurance Cash Surrender Values and Annuity Contract Balances are protected from the Creditors of the contract owner.* *NOTE: Fraudulent Conversion from reachable to exempt assets can be defeated. ABOUT INSURANCE & ANNUITIES USES OF INSURANCE & ANNUITIES IN DIVORCE T HE P L A N N I N G P A R T N E R S INSURANCE, ANNUITIES & Q UALIFIED PLANS

398 Popular Uses of Life Insurance & Annuities LIFE INSURANCE: Protects Families from the early demise of an income earner by paying a Death Benefit. Examples: Fund mortgage payments (or pay off house), educational expenses of children, living expenses of widow(er) and children, emergency funds (replacement costs of key family assets) Protects Families from additional costs in the event of the early demise of a Homemaker Statistics show the cost of homemaker services are in excess of $200, annually if they are purchased from a 3 rd party (Examples: Home maintenance management, child care, cooking, grocery shopping, laundry) [See salaries.com]. Provides a tax deferred savings program with accumulations of premiums and earned interest Tax Free withdrawals can be taken during retirement. Can assure payments of obligations by an insured in lending and investment banking by payment a Death Benefit to a lender or investor ABOUT INSURANCE & ANNUITIES USES OF INSURANCE & ANNUITIES IN DIVORCE T HE P L A N N I N G P A R T N E R S INSURANCE, ANNUITIES & Q UALIFIED PLANS

399 Popular Uses of Life Insurance & Annuities (cont.) LIFE INSURANCE (cont.): Can assure funding for business continuity by the payment of Death Benefit to a business enterprise on the death of a Key Person. Can provide funds for buying and paying for business interests under a Buy Sell Agreement between business owners if one of them dies. [NOTE: Disability Insurance can be used for this purpose also if the Buy Sell Agreement provides for a purchase and sale on the disability of one of the business owners.] In Florida: Statutes protect of Life Insurance Policy Cash Values and Death Benefits from claims of the creditors of the insured. Life Insurance Death Benefits provide funds to pay Estate Clearance Costs that occur on the death of the Insured: Probate Expenses Debts Estate Taxes ABOUT INSURANCE & ANNUITIES USES OF INSURANCE & ANNUITIES IN DIVORCE T HE P L A N N I N G P A R T N E R S INSURANCE, ANNUITIES & Q UALIFIED PLANS

400 Popular Uses of Life Insurance & Annuities (cont.) ANNUITIES: Provide income for a specific number of years Provide guaranteed income for life [NOTE: This means the streams of payments cannot be outlived.] There are no income taxes on the Investment portion of payments. The income tax code treats this portion as a return of principal on which income taxes were already paid. A special formula in the tax code determines this amount. Provide tax deferred accumulations in Deferred Fixed Annuities. [NOTE: Under the Annuity Contract, the Annuity Company holds on to the premiums and accumulates interest until the Contract Owner is ready to start taking income payments.] In Florida and a few other states, contract accumulations are protected from the claims of the Contract Owner s creditors. [NOTE: Rules Against Fraudulent Conversion prevent putting money into an Annuity Contract when the claim has already arisen.] ABOUT INSURANCE & ANNUITIES USES OF INSURANCE & ANNUITIES IN DIVORCE T HE P L A N N I N G P A R T N E R S INSURANCE, ANNUITIES & Q UALIFIED PLANS

401 Challenges in Divorce Alimony & Property Settlements FROM THE POINT OF VIEW OF THE PAYER: Does the Payer have sufficient income to meet support obligations or equitable distributions installment settlement? The Payer suffers intermittent aggravation of writing checks to a former spouse. The Payer will have concerns about meeting the obligations if there are fluctuations of the Payer's Income. The Payer will have concerns about meeting the obligations if the Payer becomes ill or disabled. The Payer will have continuing obligations to the Prior Spouse and Family if the Payer re-marries and starts a new family. ABOUT INSURANCE & ANNUITIES USES OF INSURANCE & ANNUITIES IN DIVORCE T HE P L A N N I N G P A R T N E R S INSURANCE, ANNUITIES & Q UALIFIED PLANS

402 Challenges in Divorce Alimony & Property Settlements (cont.) FROM THE POINT OF VIEW OF THE PAYEE: Can the Payee rely on the Payer to meet the obligations? Will Enforcement Actions in the Court become necessary to coerce payments to which the Payee is entitled by judgment or order? Will payments continue if the Payer has fluctuations of income? Can the Payer be held in contempt if there is a loss of assets? Will payments continue if the Payer becomes ill or disabled? What will happen about unmet obligations if the Payer dies or dies before a transaction provided for in the judgment is completed? [Ex. Payments of a mortgage or a prepaid college fund.] Will payments continue if the Payee creates some other event that reduces his ability to make them? ABOUT INSURANCE & ANNUITIES USES OF INSURANCE & ANNUITIES IN DIVORCE T HE P L A N N I N G P A R T N E R S INSURANCE, ANNUITIES & Q UALIFIED PLANS

403 Challenges in Divorce Alimony & Property Settlements (cont.) FEATURES OF LIFE INSURANCE AND ANNUITY CONTRACTS THAT ARE RELEVANT TO DIVORCE PROCEEDINGS: Periodic payments become the obligation of the Life Insurance or Annuity Company. Receipt of periodic payments is regular and assured. Life Insurance Death Benefits assure continuation of funding obligations such as child support and education obligations. CAVEAT: This presumes 1. policies and contracts are purchased, and 2. properly funded, and 3. Proper beneficiaries are named [See later discussion] ABOUT INSURANCE & ANNUITIES USES OF INSURANCE & ANNUITIES IN DIVORCE T HE P L A N N I N G P A R T N E R S INSURANCE, ANNUITIES & Q UALIFIED PLANS

404 How Life Insurance & Annuities Can Secure These Obligations or Payments ALIMONY: Alimony that is Permanent and Periodic for Life A Single Premium Immediate Annuity ( SPIA ) can assure payments for life. A Life Insurance Policy Death Benefit could fund continuation of payments after the death of the payer. In a proper interest rate environment both parties can benefit from discounting the single premium necessary for a deferred fixed annuity to create the income called for. The assurance of payment to the Payee may allow for a lesser negotiated amount. ABOUT INSURANCE & ANNUITIES USES OF INSURANCE & ANNUITIES IN DIVORCE T HE P L A N N I N G P A R T N E R S INSURANCE, ANNUITIES & Q UALIFIED PLANS

405 How Life Insurance & Annuities Can Solve These Issues ALIMONY (cont.): Alimony that is Paid for a Stated Period (Durational or Rehabilitative) A Single Premium Immediate Annuity ( SPIA ) can assure payments for the period. A Life Insurance Policy Death Benefit could fund continuing payments after the death of the Payer. Term, Permanent, or Single Premium Permanent are available choices. In a proper interest rate environment both parties can benefit from discounting the single premium necessary for a deferred fixed annuity to create the income called for. The assurance of payment to the Payee may allow for a lesser negotiated amount. Periodic Subject to Contingencies such as remarriage or changes of other circumstances. A Life Insurance Policy Death Benefit could fund continuation of payments after the death of the Payer by providing a fund from which payments can be made. Term, Permanent, or Single Premium Permanent are available choices. Cannot create an Annuity contract that changes on contingencies ABOUT INSURANCE & ANNUITIES USES OF INSURANCE & ANNUITIES IN DIVORCE T HE P L A N N I N G P A R T N E R S INSURANCE, ANNUITIES & Q UALIFIED PLANS

406 How Life Insurance & Annuities Can Solve These Issues (cont.) PROPERTY SETTLEMENT: Immediate Transfers but still following judgment No real use for Life Insurance. Annuities may make a good alternative form of payment Postponed Transfers such as later sale of a home No real need, UNLESS A Life Insurance policy is purchased to cover value if the transaction is not completed. Cash surrender value can partially fund if a disproportionate transfer Term, Permanent, or Single Premium Permanent are Available Choices Lump Sum Payments instead of transfer of specified property A Single Premium Immediate Annuity or Deferred Annuity can provide an alternate property In a conducive interest rate environment, there may be a savings for either or both parties ABOUT INSURANCE & ANNUITIES USES OF INSURANCE & ANNUITIES IN DIVORCE T HE P L A N N I N G P A R T N E R S INSURANCE, ANNUITIES & Q UALIFIED PLANS

407 How Life Insurance & Annuities Can Solve These Issues (cont.) CHILD SUPPORT: Periodic Payments of stated amounts until adulthood A Single Premium Immediate Annuity can assure payments Life Insurance Policy can assure payments if payer dies Cash Surrender Value can fund payments in out years Term, Permanent, or Single Premium Permanent are available choices Obligations for contingency payments such as medical care or special expenses like particular educational opportunities (programs, camps) Life Insurance Policy can assure payments if Payer dies Cash Surrender Value can fund payments in out years Term, Permanent, or Single Premium Permanent are available choices ABOUT INSURANCE & ANNUITIES USES OF INSURANCE & ANNUITIES IN DIVORCE T HE P L A N N I N G P A R T N E R S INSURANCE, ANNUITIES & Q UALIFIED PLANS

408 How Life Insurance & Annuities Can Solve These Issues (cont.) CHILD SUPPORT (cont.): Payments of contingent amounts after adulthood such as expenses of college and postgraduate education Life Insurance Policy can assure payments if Payer dies Cash Surrender Value can fund payments in out years Term, Permanent, or Single Premium Permanent are available choices ABOUT INSURANCE & ANNUITIES USES OF INSURANCE & ANNUITIES IN DIVORCE T HE P L A N N I N G P A R T N E R S INSURANCE, ANNUITIES & Q UALIFIED PLANS

409 Key Problems Associated with Using Insurance & Annuities to Solve These Issues The Problem A judgment by agreement or the Court may direct actions and payments but not assure the actions are taken and the payments made unless an enforcement action is presented. In the meantime, a situation can develop that is not satisfactory, unless a Court can fix it. The Conditions - Life Insurance Policies and Annuity Contracts are between the company and the owner of the policy or contract. The company has no duty to the other spouse who the Court directs be protected by the purchase or transfer of a policy or by being named as the beneficiary. The insurance or annuity company is usually not subject to the jurisdiction of the Court. The Potential Result The death or incapacity of a person who was to name another as a Beneficiary without having done so leaves the insurance company with responsibility to the current beneficiary only. Can the other do anything to, put the insurance company in a position that it chooses to interplead? Or put the insurance company under the Jurisdiction of the Court if it disburses prior to receiving notice of the change provided by the agreements? ABOUT INSURANCE & ANNUITIES USES OF INSURANCE & ANNUITIES IN DIVORCE T HE P L A N N I N G P A R T N E R S INSURANCE, ANNUITIES & Q UALIFIED PLANS

410 Key Problems Associated with Using Insurance & Annuities to Solve These Issues (cont.) Is interpleader a satisfactory result for the Insurance company that is on notice? It only preserves the death benefit to be argued over. And the other Payee is also initially not subject to the jurisdiction of the Court. Can the company be made subject to an injunction? To pay to the proper person? To NOT pay or be liable if they do pay the currently named beneficiary despite notice? [Maybe! Advised there are no Florida cases on this point.] Can the Insurance company insist a change of beneficiary has to be on their form or receive notice of it prior to the death? Have heard a suggestion the marital settlement should provide it serves as a change of beneficiary. Is the prior beneficiary guilty of anything to forfeit their entitlement as a third party beneficiary under the policy? A Constructive Trust may solve the issue if funds were already disbursed IN OTHER WORDS, the former spouse, is put in a challenging situation to recoup what that person is entitled to under the Marital Settlement or Judgment. ABOUT INSURANCE & ANNUITIES USES OF INSURANCE & ANNUITIES IN DIVORCE T HE P L A N N I N G P A R T N E R S INSURANCE, ANNUITIES & Q UALIFIED PLANS

411 Key Problems Associated with Using Insurance & Annuities to Solve These Issues (cont.) CAN THIS POTENTIAL SITUATION BE AVOIDED? Can the Court reserve jurisdiction for these matters and not consider the case closed until the matters are completed? Can the judgment of divorce include deadlines and certifications of compliance with jurisdiction by the Court to assure compliance? Manage the completion and submission of Life Insurance and Annuity Contract Applications. Make sure the proper person is named beneficiary in original issuance OR in beneficiary changers on existing policies. Make the proper beneficiary designation irrevocable ABOUT INSURANCE & ANNUITIES USES OF INSURANCE & ANNUITIES IN DIVORCE T HE P L A N N I N G P A R T N E R S INSURANCE, ANNUITIES & Q UALIFIED PLANS

412 Key Problems Associated with Using Insurance & Annuities to Solve These Issues (cont.) EVEN WHEN THERE IS A REASONABLE LEVEL OF TRUST IN A COLLABORATIVE DIVORCE, THESE ISSUES ARE STILL IMPORTANT. WHAT IF THE PAYER IS DISABLED AND A 3 RD PARTY GUARDIAN IS NAMED WHO DOESN T CARE ABOUT PAYEE OR THEIR WARD S OWN CHILDREN. SO, try to accomplish some or all of the following: Name an irrevocable beneficiary. Name a second premium payment notice addressee to deal with any non payments. Name the Payee as Owner of the Policy or Contract so it can t be cancelled or Cash Surrender Value withdrawn Make sure an Automatic Premium Loan Feature is selected; because existing cash surrender value would be applied to pay any unpaid premium and avoid a lapse. Select the Waiver of Premium option to assure there is no lapse if Premium Payer sick or disabled, for at least 6 months. [NOTE: The insurance company pays the premium and cash surrender value still increases.] ABOUT INSURANCE & ANNUITIES USES OF INSURANCE & ANNUITIES IN DIVORCE T HE P L A N N I N G P A R T N E R S INSURANCE, ANNUITIES & Q UALIFIED PLANS

413 Key Problems Associated with Using Insurance & Annuities to Solve These Issues (cont.) THE OPTIMAL ARRANGEMENT (a combination of some or all of the following) Payee is owner of the policy Payee is at least the irrevocable beneficiary. Payer is the Insured and Premium Payer The Waiver of Premium option is selected so the Insurance Company continues the payment of premiums if the Payer is sick or disabled for at least 6 months ABOUT INSURANCE & ANNUITIES USES OF INSURANCE & ANNUITIES IN DIVORCE T HE P L A N N I N G P A R T N E R S INSURANCE, ANNUITIES & Q UALIFIED PLANS

414 Qualified Domestic Relations Orders ( QDROs ) When the Portion Paying Spouse s Qualified Benefits are Divided and Distributed, the Payee Faces Tax Consequences If the cash is needed for immediate expenses, penalties and distribution taxes can be paid and the net amount remaining used for those purposes. If the Payee wants to maintain the distributed amount in a tax deferred vehicle without a current payment of taxes, a Qualified Rollover to such an account is allowed. ABOUT INSURANCE & ANNUITIES USES OF INSURANCE & ANNUITIES IN DIVORCE T HE P L A N N I N G P A R T N E R S INSURANCE, ANNUITIES & Q UALIFIED PLANS

415 Qualified Domestic Relations Orders ( QDROs ) (cont.) When the Portion Paying Spouse s Qualified Benefits are Divided and Distributed, the Payee Faces Tax Consequences (cont.) An Individual Retirement Account ( IRA ) is such a vehicle. The IRA can hold Interest Bearing Accounts Investment Funds Annuities Immediate Annuities are possible but face taxes on distributions Deferred Annuities are available to be held in an IRA The Deferred Annuity allows growth until a later date with distributions are needed or required. The Deferred Fixed Index Annuity allows for potentially more interest than most Interest Bearing Accounts but with no risk of Market Loss. ABOUT INSURANCE & ANNUITIES USES OF INSURANCE & ANNUITIES IN DIVORCE T HE P L A N N I N G P A R T N E R S INSURANCE, ANNUITIES & Q UALIFIED PLANS

416 Summary & Conclusions ISSUES: Life Insurance and Annuities can solve many of the challenges in creating divorce results. The terms of a judgment do not create the desired result. Post judgment conduct in compliance with the judgment creates the desired result. Who manages the post judgment conduct? Is each step only enforceable with a specific enforcement action? What happens if a Payer dies or becomes incapacitated before the proper step is taken? What happens if a Payer (or the Payer s Guardian) changes the arrangement unilaterally after proper arrangements were completed? ABOUT INSURANCE & ANNUITIES USES OF INSURANCE & ANNUITIES IN DIVORCE T HE P L A N N I N G P A R T N E R S INSURANCE, ANNUITIES & Q UALIFIED PLANS

417 Summary & Conclusions (cont.) Solutions?: Will the Court retain jurisdiction until all the steps of a judgment are completed so that contempt would lie immediately if a step not taken before a deadline? Can mediation involve taking the needed steps before judgment is entered? Can a comprehensive escrow be created that implements the steps as soon as the gavel goes down? Can the steps be taken as part of a Collaborative Law proceeding? Can a comprehensive escrow be created that implements the steps as soon as the gavel goes down? ABOUT INSURANCE & ANNUITIES USES OF INSURANCE & ANNUITIES IN DIVORCE T HE P L A N N I N G P A R T N E R S INSURANCE, ANNUITIES & Q UALIFIED PLANS

418 Summary & Conclusions (cont.) There are many ways Life Insurance Policies and Annuity Contracts can be used to help create results in divorce situations. The proper implementation of the solutions provided by Life Insurance Policies and Annuity Contracts is essential if their benefit is to be realized. Creativity by lawyers and advice about and assistance by knowledgeable professionals are both critical to get the desired results. PROPER USE OF LIFE INSURANCE POLICIES AND ANNUITY CONTRACTS CAN ENHANCE THE LIVES OF ALL THE PARTIES INVOLVED IN A DIFFICULT SITUATION ABOUT INSURANCE & ANNUITIES USES OF INSURANCE & ANNUITIES IN DIVORCE T HE P L A N N I N G P A R T N E R S INSURANCE, ANNUITIES & Q UALIFIED PLANS

419 USES OF INSURANCE & ANNUITIES IN DIVORCE AND ENHANCING SETTLEMENT THANK YOU THE END RICK D. MILLER, CLU, ChFC, RHU, Independent Agent SCOTT F. BARNETT, J.D., LL.M. (TAXATION) ABOUT INSURANCE & ANNUITIES T HE P L A N N I N G P A R T N E R S INSURANCE, ANNUITIES & Q UALIFIED PLANS

420 Pitfalls in Collaborative Practice By Sheldon E. Finman, Esq. Randy Heller, Ph.D. Robert J. Merlin, Esq. Enid Miller Ponn, Esq. Edward Sachs, CPA Lana M. Stern, Ph.D.

421 PITFALLS IN THE COLLABORATIVE PROCESS This panel discussion will be focused on pitfalls that occur in the Collaborative Process. The Panel, Shelly Finman, Esquire, Randy Heller, Ph.D., Enid Miller Ponn, Esquire, Ed Sachs, C.P.A., and Lana M. Stern, Ph.D., will each discuss an issue that arose in a Collaborative case in which they have been involved. Bob Merlin will moderate the discussion. Each member of the Panel will make a 5-minute presentation on the facts and the issues that they would like to address. The other Panel members will give their opinions on the issue and the attendees will give their perspective as well. The topics that will be discussed include the following: 1. Shelly Finman, Esquire: The issue will be how to work with difficult clients. Here are three examples: Case Example #1. 35 year old husband and father of an 8 year old child. Mom was overly demanding, overly emotional, excessively angry, overly dramatic and had swayed her Collaborative lawyer that Dad was a bad person. Mom kept Dad from having contact with their daughter. Case was terminated by Dad and me. Mom's lawyer eventually admitted he did not realize his client was projecting all of her bad behavior on Dad. Case Example #2. A businessman and his wife raised their two kids. Mom wanted divorce. Dad was basically a good person. He seemed to understand all aspects of all issues and accepted the practical realities. However, he had an anger management problem and would periodically go off on me, or if we were in a joint conference, go off on the other side. He would usually shut down and/or immediately walk out or even leave the premises and not return. Case Example #3. 62 year old wife had a long term marriage to a 47 year old lawyer. Wife was a severe borderline, had ongoing psychiatric treatment for many years, and was estranged from her own adult daughter who prohibited her from having a relationship with her granddaughter. I fought with this client whenever she ventured outside of appropriate boundaries that I usually require in my cases. I would find my voice raising and patience wearing thin. My staff refused to take her calls. Questions: What responsibility does a Collaborative attorney have to screen clients to determine whether they are appropriate for the Collaborative Process? How do we avoid being caught up in our clients' "issues?" Do we have a responsibility to manage our clients and if so, how can we manage them? Page 1 of 5

422 2. Randy Heller, Ph.D.: The issues will be the lack of communications and trust between the professionals and how to handle a recalcitrant client. Case Example: I was contacted by the attorney for the wife after the first joint meeting with the Neutral Financial Professional and was requested to contact her because the team realized that they needed an MHP. The wife was in recovery from an eating disorder and substance abuse. The clients had a teenage son who was at a therapeutic boarding school and a teenage daughter who was also having difficulty, especially with the wife. I attempted to schedule an appointment with both the husband and the wife or at a minimum, to speak with both of them. However, the wife told me that they were not available for a while. She proceeded to give me all of the details of her side of the situation. I listened to her and told her that it was important for me to speak with her husband as well. I sent a summary of our conversation to her and asked her to share it with her husband and have him contact me. The wife ultimately scheduled an appointment for an initial intake. She presented as anxious and somewhat unstable. She said she was emotionally estranged from her children and feared that if the divorce did not go well, she would lose them to her husband. Additionally, she had had an affair and was afraid the children would find out about it. There was an issue of a significant amount of money related to the divorce and her husband s business. She felt that she had to give him what he wanted so that things did not get worse between her and her children, as she was sure he would turn them against her if she did not give in to him. At that point, I was uncertain about her competency. I asked her if she could sit with me and her husband to discuss these issues as I wanted to see the interactions between them, and she said she could. Given her emotional challenges, I suggested that it would be a good idea for her to sign a release for me to speak with her therapist so we could work together to give her the support she needed through the process. She agreed and provided me with her therapist s contact information and signed a release. She also signed my Participation Agreement. I then met with the husband. He stated that he would have to tell the children everything about their mother if she did not do what he wanted, and he believed that the children would side with him. I continually stressed the importance of keeping the children out of the middle, but he did not see that as being problematic. I held my first telephone conference with both attorneys, told them my plan, as well as my concerns about the wife s instability, the husband s perspective, and my intentions to contact the wife's therapist. After I attempted to contact the therapist several times, I received a call from the wife revoking her consent for me to speak with her therapist. I then received another call from the wife accusing me of attempting to speak with her therapist without her permission, which I assured her I had not done, and I told her that I stopped my attempts to reach her therapist as soon as she revoked her consent. I let her attorney know what had transpired and how concerned I was about the wife's ability to make sound decisions. Her attorney appeared to agree with me saying that the wife continually vacillated. I told the attorneys that I was planning to meet with the couple. The attorney for the husband thought it was a good idea. The attorney for the wife said she did not want her to sit in the same room with the husband. I questioned the wife's attorney about the way she appeared to be overly protective of the woman. The attorney said she was afraid that the wife was so fragile that she would fall apart. I wanted to Page 2 of 5

423 know more about the attorney s perceived imbalance of power in the clients' relationship so I could address it and be better prepared to do my job. Much time had passed, and I had not met with the couple. I scheduled another teleconference with both attorneys and let them know that I felt out of the loop and that it had come to my attention that meetings were taking place without me. Additionally, I had no contact with the Neutral Financial Professional. I knew from conversations with the attorneys that they were not working together and there was a lack of trust between them. The attorney for the wife let me know that she was trying to influence her client to make a decision that was in her best interest, not out of fear, but out of what she was entitled to do. The attorney for the husband said that the wife had the right to do whatever she felt she needed to do, even if it was different than what the law would provide. The case ultimately fell apart and the parties ended up litigating. The attorneys, who were close colleagues before this case, stopped communicating after the case fell apart. I attempted a de-brief, but to no avail. Approximately 8 months later, I orchestrated a de-brief. During the de-brief, I learned from the wife s attorney that the wife said she hated me and did not want to work with me. The attorney for the wife acknowledged that the wife had said negative things about her many times throughout their work together. Her attorney said she did not discuss this with me because she did not want to hurt my feelings. According to the attorney for the husband, the husband wanted me on the case. Both attorneys admitted that they were not trusting each other or communicating freely with me or each other during the process. Questions: How should the team address the lack of trust, the clients' concerns, and other missing pieces that are apparent but not being talked about? When should the MHP be brought into a case, particularly a case with significant discord and mental health concerns? Should there be any meetings held without the MHP? Should it be mandatory that the MHP speaks to a private therapist? Can you require that? If the client won t agree, what should the attorney do? 3. Enid Miller Ponn, Esquire: The issue will be confidentiality and how it should be handled by attorneys. Case Example: A few months after a Collaborative case started, the husband s attorney told the wife s attorney "confidentially" that she just learned there is a good chance that the husband will receive a large sum of money in a couple of months from his employer as an incentive to stay with the company. The husband's attorney told the wife's attorney that they had to hurry and settle the case or the husband would terminate the Collaborative Process and file a Petition. There was no "date of filing" in the Participation Agreement. There were active negotiations, but the wife kept demanding more documents from the husband. A few weeks went by without a final settlement. The husband told his attorney that he could not wait any longer and that he needed to file right away, but he instructed his attorney not to tell the wife s attorney. The husband's attorney stopped Page 3 of 5

424 responding to the wife s attorney s phone calls and s. The wife learned thru the grapevine that the husband had hired a top litigator and filed for divorce. No termination notice is given in the Collaborative Process, intentionally. The wife was floored. Questions: Does the requirement to act in "good faith" carry through to the manner of termination? What do you do as an attorney when the application of a provision of the Participation Agreement goes against your client s interests and specific instructions? What about the good faith and trust involved in the relationship between the attorneys? How should the wife s attorney have dealt with the confidential information that the other attorney shared with her that she was asked not to share with her own client? Assuming that it could not have hurt or helped the wife s case to know this because the husband had the right to file at any point, was the wife s attorney prejudicing her client s rights by not telling her about her husband's intentions? What should the husband s attorney have done when the husband instructed her not to let the wife s attorney know about his plans to file? Should there be a clause in our Participation Agreement setting the "date of filing?" What about a clause in the Participation Agreement that requires mediation before litigation if someone wants to terminate the process? 4. Ed Sachs, C.P.A.: The issue will be the roll of Neutral Financial Professionals and how their work product should be presented to the participants. Case Example # 1: I was working with the husband to gather information that would allow me to value his businesses, determine his income, and determine the values of all other assets. After reaching my findings, I shared the results with both sides. In preparation for our settlement conference, I was asked to prepare an equitable distribution chart. In doing so, I made certain assumptions including providing the wife with more cash and none of the husband s IRA account. That assumption was based on the premise that the wife needed to be provided with as much earning ability from the equitable distribution as possible to help meet her needs. Question: Should I have discussed the equitable distribution scheme with the professional team to get everyone on the same page before discussing with, or distributing the schedule to, all parties of the process? Case Example #2: I was asked to prepare scenarios for alimony and child support by the husband and his attorney for the purpose of negotiating and/or preparing settlement offers. Question: Am I required under the Participation Agreement to share these schedules and scenarios with the wife and her attorney? Page 4 of 5

425 In both cases, I served as a go-between during negotiations. At our settlement meeting in both cases, the parties were in separate rooms. I literally took the role, along with the MHP, as mediator. Question: In those situations, should I govern myself as a mediator or as a Collaborative Neutral Financial Professional? 5. Lana M. Stern, Ph.D.: The issue will be the extent to which a Mental Health Professional/Facilitator should let the parties vent during the Collaborative Process. Case Example: During the course of a 15 year marriage, the wife had multiple affairs. The husband, who was 8 years older than the wife, had long promoted her career and felt that he had made her a star. He was totally unaware of her affairs and felt that his reputation had been compromised because his wife had insinuated that he knew and approved of an open marriage. At the first and second team meeting, his attorney insisted that there was an elephant in the room that must be discussed and felt that allowing the husband to vent at the team meeting was both necessary and appropriate. The MHP did not agree and arranged for a private meeting in the MHP s office to enable the husband to vent. Questions: Should a MHP/Facilitator step in and stop a client from venting and if so, when should that occur? How does an MHP/Facilitator know when a client has gone too far? What roll should the other professionals play in this determination? Should an attorney encourage his or her client to vent or should the attorney stay out of it and let the MHP/Facilitator handle the situation? Page 5 of 5

426 Optimizing The Pivotal Role of a Mental Health Professional: A Panel Discussion By Caroline Black-Sikorske, Esq. Jeremy D. Gaies, Psy.D. John Fraser Himes, Esq. Barbara E. Kelly, Ph.D. Adam T. Magill, MBA, AVA, CBA, CFFA Linda Solomon, LMFT

427 The Mental Health Professional as a Neutral in the Collaborative Process by Linda Solomon, LPC, LMFT, LCDC, and Norma Levine Trusch, JD In recent years, there has been considerable dialogue about a new team model, which can be utilized to help family s transition through the divorce process. This model, sometimes referred to as the Neutral MHP Model or the Texas Team Model, emerged in the State of Texas several years ago and is now being utilized in other areas of North America as well. As with anything new and different, many have based opinions on assumptions; while others have first hand knowledge of the benefits and challenges of this model. We will attempt, in this brief article, to share an overview of this model to give you an opportunity to formulate your own questions, concerns, and possible need for additional information. It should be noted that a financial professional works as a neutral team member also, but this article focuses on the role of the Neutral MHP (mental health professional). EVOLUTION OF THE MODEL The model was created by a combination of timing, resistance, and willingness to look for a resolution that was more than a decree. Several years ago, after attending a two-day interdisciplinary training in the two-coach model, a few lawyers in the Dallas-Ft. Worth area decided to revisit the concept of coaches participating in the collaborative process. (Prior to that, there had been less that a handful of cases in which a mental health professional was involved from the beginning.) They were intrigued by information presented in the training describing many of the benefits of mental health participation in the process. At the same time, prior to that, most of them had experienced some resistance (within themselves, from colleagues or potential collaborative clients) to the idea of two or more coaches participating in the process. Most of this appeared to be resistance to the financial commitment involved. As a result of some discussions with the mental health professionals (MHP s) who also attended the training, a decision was made to work on a few cases with one MHP serving as a neutral coach. As with anything new and different, there was a learning curve and a potential to add value to the client s process. Almost immediately, clients began reporting to their lawyer(s) the comfort and benefits experienced with a neutral MHP participating in their process. Since that time, the model has evolved from a small handful of lawyers working with MHP s on cases which were identified as problems to numerous lawyers throughout the State of Texas working with a team on the majority of their cases. It should be noted this model is now being utilized in other areas also. The model continues to evolve with professionals always attempting to find a way to offer a better process to each client. OVERVIEW OF THE MODEL In this model, the professionals on the team include two lawyers, a neutral financial professional, a neutral mental health professional and a child specialist; when needed. The neutral mental health professional in involved with the case from the inception of the process; while the child specialist

428 typically joins the process, as needed. (Note: Obviously, the role of the neutral child specialist is crucial in many cases. It will not be the focus of this article.) At times, the MHP is the professional bringing the couple into the collaborative process. This may occur if the MHP has worked with the couple as a therapist, or, if the couple was referred to the MHP for education and information regarding the collaborative process. If the former is the case a new MHP will be asked to work as a team member. This is based on the Protocols for Practice developed in Texas in which it is suggested that no prior relationship should exist between the neutral MHP and either of the clients. If the latter occurs, the MHP typically works as a neutral team member. As this model was developing, MHP s often were asked to step in and participate once other team members recognized the process was stalling or there were psychological or communication issues impeding progress. This often carried an unspoken message to clients that there was something wrong with them and/or the process, or, other team members couldn t handle it. It was soon realized this was not an effective approach. It soon evolved to creating teams from the inception of a case and educating clients, from inception, that teams are available to help them with this transaction. Many lawyers, who are often the gatekeepers, reported they had to make their own paradigm shift to be comfortable discussing this approach with potential clients. They described their own comfort level increasing as they worked with MHP s as team members from the inception of the collaborative process, to clearly understand the role and value of such participation. DEFINITION OF THE ROLE The role of neutral mhp is a multi-faceted one, to say the least, as it involves participation, on a consistent basis; with all members in the process. Licensed MHP s are trained to screen, assess, counsel, case manage, intervene in crisis, make appropriate referrals, facilitate group process, problem solve, and role model healthy communication skills. All of these skills, learned in training and experience as MHPs, are utilized as neutral coaches in this process. This role is often described in training as complex and fascinating; both at the same time. It serves well for those MHP s who are interested in various tasks and utilizing many of their skills. The role of the Neutral MHP is specified as follows: A licensed Mental Health Professional who has specific training in collaborative law and the interdisciplinary approach. He/she will facilitate communication amongst all participants in the process, manage the emotional content of such, assist in development of a parenting plan (when appropriate) and educate/model healthy co-parenting skills and communication. COMPONENTS OF THE ROLE If the lawyers are the gatekeepers and ask the MHP to participate as a team member, all necessary participation agreements will then be prepared. A team conference call will occur as soon as possible. This call serves two purposes: One to begin gathering information about the case and, secondly, to begin working together as a team. The latter tends to be a very important piece of this

429 call; especially if the team members have not worked together on prior cases. 1. Gathering Information and Building Trust with the clients Once involved as a team member, the MHP will meet with the client(s) individually, for one-two hours, as soon as possible. Ideally, this occurs before the first joint (6-way) meeting. Realistically, time or other circumstances may not allow this to occur. If so, the individual meetings occur soon after the first joint meeting. The purpose of these meetings is to gather information from each person by listening to his and her story, while beginning to determine the client(s) ability to deal with the stressors of divorce, learn about one s ability to handle all the emotions that are occurring, and, overall, begin to build a foundation of trust with each client. One of Stephen Covey s concepts, The Emotional Bank Account, comes to mind to illustrate the information above. Each time the Neutral MHP interacts with either/both clients it is, hopefully, a deposit in the emotional bank account named trust. This bank account of trust will be tapped many times during the collaborative process; particularly in the negotiation stage. After meeting with each client, the MHP gives observations and an overall summary to other team members. The challenge in these meeting is not to focus on a therapeutic type of interview (family of origin information, etc.), but rather to gather information that will aid the collaborative process and allow healing to begin for each individual. The lawyers frequently express gratitude for the fresh insight regarding their client(s). 2. Facilitate communication amongst all participants in all joint (6-way) meetings The Neutral MHP attends all joint meetings. If one were to conduct a random sampling of clients, lawyers, and FP s and ask one of the strengths of this role, this aspect would be mentioned frequently. It is recommended that each team have Expectations of Conduct defined and ready to discuss with clients. The MHP typically explains these expectations, asking each participant to abide by them. Examples are: Focus on the future and avoid unnecessary discussion of the past, do not interrupt, speak for yourself, and follow a strict agenda (no surprises!). The MHP oversees these expectations and communication in general, in all joint meetings. It is not unusual to hear lawyers and FP s stop themselves and say Oops, I just interrupted. I apologize. On first glance, this aspect of the role may seem straightforward and something that does not require licensure, experience and wisdom. The reality is the communication in the settlement meeting, verbal and non-verbal, is crucial to the process and has the ability to derail everything that occurs. The other reality is, based on experience, one never knows how to predict what behaviors will show up in the room. Clients, as do all of us, bring all kinds of emotions, skills or lack thereof to deal with stress, along history and pattern of coping mechanisms, and psychological concerns to these meetings. MHP s are trained to observe non-verbal behaviors as much as the verbal content of each

430 interaction. These skills are extremely important in facilitating productive discussion in settlement meetings. What if there is a power imbalance, one spouse is much more verbal that another, or another person is deeply grieving and struggling to fight back tears or other emotions? Being observant of all of the above is extremely important in this aspect of the role. In addition, it is crucial to observe the verbal and non-verbal interactions of all team members with each client. This can and does have a direct impact on the comfort level in the room and overall sense of safety to speak one s truth. 3. Manage the Emotional Content of the Process Aahh, the emotions! All of us, at times in this process, have no doubt wished that emotions would just go away...stop...be controlled...so we can get back to business. The reality is the emotions have a huge influence on everything that occurs in this process. Sometimes that influence is obvious and can be worked through quickly and efficiently; other times everyone is just aware that one spouse or another is not responding logically and is left wondering why. Emotions can often end up being the filter through which one client or another speaks, thinks, and makes decisions and that has the potential to lead to a dead stop in the process. The Neutral MHP manages the emotional content of the process in several ways: a. Assessing each client s emotional readiness for divorce and ability to work through a life transition. This is sometimes glaringly obvious to all involved and, other times, takes a period of time to understand and/or gain from contact with the client s therapist; when appropriate. b. Helping the client(s) in joint meetings to process emotions that may show up out of nowhere. Experience has shown, when and if a client becomes quite tearful, angry, or irrational, it is beneficial to take a break in the meeting. The Neutral MHP will typically spend limited time with that client and his/her lawyer; when appropriate. The goal of this intervention is to acknowledge the emotion being experienced, be present with the client for a short duration of time, and give the client some skills to center him/herself in preparation to return to the meeting. There are those rare circumstances where, in the MHP s best judgment, it is best to terminate a meeting. c. Make referrals for psychological intervention when appropriate. It is often discussed amongst team members that we are seeing clients in one of the worst times in their lives. The powerlessness of divorce can and will, for many of us, bring out some of our worst behaviors; those of which we are not proud; those which we care not to repeat as time passes and perspective increases. Therefore, the Neutral MHP focuses on each client s reactions and adaptations to the various steps of the process. When it appears that more support is needed, or negative emotions are increasing, not decreasing; therapy referrals are often made. d. Encourage and support all team members to process emotions that may be

431 standing in the way of the client s process or progress. The Neutral MHP is typically the team member asking questions, in a debrief session or team phone call, to allow for discussion of any humanness that shows up for the professionals. This often occurs by hearing one of the team members say, He really pushes my buttons. It allows everyone on the team to do some dumping of frustration or other emotions that we may be experiencing or, taking on, regarding the clients or the process itself. The ability to do this and clear it out does nothing but add to the team s ability to remain focused and clear in the process. e. Listening, when and if appropriate, to one of the client s dump some emotions regarding the spouse or the process. This is, of course, a judgment call for the Neutral MHP due to his/her role of impartiality. A decision must be made each time it is requested, or appears necessary, if doing so with one client will have a positive or negative impact on the process and the other spouse. When a Neutral MHP does spend time with one spouse or the other for some emotional dumping, the MHP needs to notify all participants (including the other spouse). Typically, a short is sent by the MHP summarizing a few moments spent with the wife helping her to process emotions and feel ready to focus on tomorrow s meeting. It is recommended, when this occurs, that the Neutral MHP offers the same time and framework to the other spouse. Based on the information just shared, in this mode, this is not the norm ; rather the exception. 4. Facilitate and encourage the development of healthy co-parenting skills It is reasonable to assume that when most couples decide to divorce, their ability to communicate effectively may be low or, at times; non-existent. Balance that with the importance of parents having an open flow of communication to be able to share information, problem solve and make decisions regarding their children s lives. The Neutral MHP begins working, as early as possible, in the process on tools to help the couple shift from husband-wife emotions and patterns of communicating to effective co-parenting communication. Many factors come into play in this effort: A. Are both capable of healthy communication? B. Are both willing to learn to let go of/separate from spousal emotions and focus on the other as an important part of the children s lives (in their parental communications)? C. Does each one acknowledge that the children will benefit from involvement of two parents who are willing and able to communicate on an ongoing basis? D. Does each one know how to utilize problem-solving skills? E. Does each one acknowledge that involvement of the other parent has the potential to make his/her job as a single parent easier? The clients are sometimes resistant and, other times, very willing to learn how to communicate more effectively. Sessions with both parents will focus on content issues such as a temporary concern (i.e. working out a schedule for the Thanksgiving holiday when it occurs in the midst of the divorce) to process issues such as problem-solving skills to use as parents. The Neutral MHP will consult with the Child Specialist, as needed, for specific concerns around the children. An educational component is also included in this part of the work with the couple, such as reading

432 materials on effective communication or referrals to websites that have tools for communicating schedules, homework assignments, etc. for the children. 5. Encourage and facilitate effective communication amongst team members An interesting and complex aspect of this role is to encourage healthy communication amongst all team members. At times, this is very straightforward and involves nothing more being present as all team members discuss an issue. Other times, as with any personal or professional relationship, there may be a need to discuss an elephant in the room. The team debrief, which occurs immediately after each joint meeting, has proven to be an effective tool to allow time for dialogue about the team member s interactions. It also gives room to discuss ways any/all team members can improve in the process. The Neutral MHP will often ask the difficult questions, to encourage discussion; or bring up a topic that everyone is thinking; but no one is saying. (i.e. The Neutral MHP might say, I sense there is tension between wife s lawyer and the FP today. I heard it in your tone of voice when you were discussing stock options with the client. Can we discuss that now and clear it up so clients don t have to be exposed to any tension? ) Another aspect of effective communication is encouraging all team members to have scheduled, consistent communication. As this model has evolved, any/all team members will request this to occur, but in the early stages of the model, the MHP was the person making the suggestion and often scheduling the discussions. AN ATTORNEY S VIEW OF THE MODEL The rapid acceptance of the team model by lawyers who are exposed to it can best be attributed to the growing awareness of every collaborative lawyer that they are wading in unfamiliar waters when then jump into the collaborative pool. No longer do we have to deal with just our client s emotions. Now we find ourselves attempting to juggle the emotional dynamics between the two clients, between the clients and their own lawyers, and the clients and their spouse s lawyers not to mention the dynamics between the attorneys! Needless to say, nothing in our legal education has prepared us for this, and feelings of inadequacy are a powerful motivator towards at least trying the team model. Once tried, the attorney quickly discovers the power of the presence of the neutral MHP in the collaborative room. Carla Calabrese and Winifred Huff of Dallas most eloquently described that power in their excellent paper The Collaborative Team Model: Taking Texas to the Next Level, and have generously given me their permission to quote from portions of it below. The Neutral Voice Restores Trust to the Process The [neutral] allied professional s involvement is fundamental to a successful collaboration because it brings to the table a neutral voice that the parties can trust. Once a [neutral] allied professional enters the room, the psychological dynamic of the process is fundamentally changed. No longer is it his side versus her side. When the only people sitting in the room are the two lawyers and their clients the impulse is to regress into an us vs. them mentality. The neutral

433 voice rearranges the dynamic within the room allowing an us vs. the problem mentality to prevail. This change in the dynamics is critical to transforming the process from one in which clients are highly fearful and suspicious to one where clients are more trusting and open to perspectives outside their own. The Neutral Voice Negates the Discount Factor Clients are more likely to listen and respond to the neutral voice of the allied professional with an open mind. The lawyers are viewed as aligned with their clients and as presenting agendas that support their respective client s interests. Regardless of the skill level of the collaborative lawyer, the lawyer cannot shed this perception of bias. The lawyer s words, opinions and suggestions, no matter how neutrally presented, are discounted and rarely perceived as neutral. Discounting also routinely occurs between spouses even in the best of marriages. In the crucible that is a divorce, this discounting is magnified a thousand times. This discount factor is observed over and over in the collaborative process. For example, wife s skilled collaborative lawyer suggests an option that is probably more in the husband s interest, yet the reaction of the husband is to instantly discount it. Within a short period of time the allied professional makes the same suggestion and husband and wife are nodding their heads in agreement. The reason is that the clients understand that the allied professional has no hidden agenda or bias and can be trusted to assist both parties with achieving their best outcomes under the circumstances. As collaborative lawyers it is frustrating to be tuned out by the other spouse despite our best efforts to build rapport and remain neutral. Nevertheless, to expect the other spouse to trust what you say given the circumstances is unrealistic. It is as if the other spouse is hearing your words through headphones that are tuned to a station that perceives you as, at best, an advocate for their spouse and, at worst, the enemy. No matter how skilled the lawyer, the other spouse listens with those headphones on and the volume turned way up. It is no different when their spouse makes a good suggestion; it most likely will be discounted. The power of the neutral voice to negate the discount factor, turn down the volume on the headphones and change the tuner so that the spouses are listening to the same station cannot be overstated. The Neutral Voice Negates the Advocacy Factor It is crucial to a successful resolution to obtain from spouses honest and candid answers to difficult questions. Even when a lawyer frames the tough question in a neutral manner, it is normal for spouses to be defensive and even to censor their answers. Because of the lawyer s role as an advocate, the clients perceive the tough questions asked by either lawyer as tactical, and they alter their answers accordingly. Because the [neutral] allied professional is not an advocate or aligned with either party, he is often the best person in the room to ask the tough questions without being met with censorship or client defensiveness. Thus [a neutral] allied professional is more likely to elicit honest and candid answers to difficult questions. The Neutral Voice Resolves Lawyer s Inner Conflict

434 Collaborative lawyers are trained to think and act more neutrally, and this shift in lawyer thinking and behavior has been essential to the success of the process. On the other hand, mastering this neutrality can be problematic for the lawyer because of the inherent conflict between neutrality and the lawyer s job as an advocate. The neutral approach by a lawyer is often perceived by the client as you re not advocating enough for me and abandonment. By now, more collaborative lawyers have heard the war story where at the end of a joint session, one of the clients is heard to say, I wish I had had my lawyer at that meeting. Make no mistake, divorce clients hire collaborative lawyers to be their advocates. This alignment can fulfill a client s legitimate need to be validated and maybe even vindicated. Additionally, the lawyer s alignment can help rectify a power imbalance between the spouses, if any. In this model, although the collaborative lawyer continues to skirt toward a more neutral approach, it is the allied professional s job to bring the neutral voice to the process. This clear demarcation of the roles among the team members frees the lawyer to constructively advocate, thus eliminating the inner conflict. The Neutral Voice Reduces the Filter Factor A reality of human communications is that people filter information (consciously and subconsciously) depending upon who they are talking to. This is not about being untruthful, but about the natural way people communicate. As a result, clients often do not tell their lawyers all the pertinent information about their case, especially at the outset. In this model, information that was left out of the discussions with the lawyer ( filtered ) may be revealed by the client when speaking to an allied professional. For example, a high-powered client may withhold from his lawyer that he is fearful about losing his job, but shares this fear with the MHP outside the joint sessions. This piece of information is invaluable. The delay of receipt of withholding of this information may have a negative impact on the parties ability to reach a resolution. The collaborative process is predicated on transparent communications and the free flow of information. The result of filtered communications is that the free flow of information is reduced and/or delayed. This may have a negative impact on the efficiency with which the parties can reach resolution and ultimately on their ability to be successful in the process. The allied professionals and the lawyers working as a team can reduce the impact of the filter factor. SOME FINAL COMMENTS Before I was introduced to what I have come to call the Texas Team Model, I had been working primarily in what is known as the lawyer referral model. Initial meetings were always four-way meetings with only the lawyers and clients present. Later, if the lawyers felt they were needed, financial professionals or mental health professionals were brought in, usually to work outside the collaborative meeting room except when invited in for a specific purpose. My collaborative cases

435 almost invariably reached successful conclusions in that an agreement was reached, but I rarely felt that the collaborations had reached the full potential of the process. My first full team case was a revelation! With all of the team members present in the room the atmosphere in the room was entirely different. The clients were more relaxed, less wary, and participated more fully, and the settlements reached were richer and more creative. The power of the neutrals was incredible. I determined then that, whenever I could convince the other attorney to do so, I wanted to be part of a collaborative team. Norma Trusch For further information on the role of Neutral Coach, feel free to contact one of us. Linda Solomon, LPC,LMFT 8150 N. Central Expressway Suite 601 Dallas, TX (214) [email protected] Norma Levine Trusch, JD 4550 Post Oak Place Suite 341 Houston, TX (713) [email protected] For further information on trainings offered:

436 Proposal for Using the Title, Collaborative Facilitator Jeremy S. Gaies, Psy.D. Tampa, Florida December 2012 The field of collaborative family law has embraced several models for assisting spouses and families through a divorce. Most models utilize a mental health professional in one or more roles. One of the most widely-practiced is the full team model, which places the mental health professional in a leadership role on the collaborative team. This brief paper highlights the primary responsibilities of the mental health professional in the full team model. Further, it proposes that the title of Collaborative Facilitator be used as the preferred designation for this role. The mental health professional has three primary responsibilities central to the team. First, he or she manages communication, time, and group process. In this regard, the professional serves as the keeper of the process, and has been described alternatively as coordinator, facilitator, moderator, or team leader. In my opinion, this is the most important of the three primary responsibilities. We all understand that the spouses own the process, but owning the process and guiding the process are two very different things. To use an analogy, we might say that the spouses own the sailing ship, the spouses choose the river, and the spouses select which direction to take at each fork in the river -- but if the spouses have never sailed a ship before (and how many spouses have navigated a collaborative divorce in the past?), then it makes good sense to hire a captain to keep the ship afloat and to steer it past obstacles in the direction that the spouses so choose. Second, the mental health professional has the task of anticipating and addressing emotional obstacles, including dealing with angry outbursts, tearful moments, and emotional crises as they arise. This task is the one that is most commonly associated with the mental health professional because emotionality and personality issues are clearly in the realm of mental health service. It is also the task that the other professionals are least trained for, and, therefore, least comfortable with. In many cases, the mental health professional s expertise in managing intense, emotional situations is critical. It should also be considered, however, that there are cases in which this expertise is not heavily called upon, so this responsibility of the mental health professional is sometimes critical and sometimes far less so.

437 Third, the mental health professional assists parties in creating a parenting plan when there are minor children. While this is an important role, it is not one that requires the involvement a primary member of the collaborative team, as a mental health professional who is not integrated within the team could still work with the spouses on a parenting plan separate from the team. Of these three responsibilities, the one that is most comprehensive and pervasive throughout the process is that of managing communication, time, and group process. Serving as the keeper of the process best characterizes the responsibility of the mental health professional from start to finish of a collaborative divorce. It is in this role that the mental health professional serves as the team leader and provides the glue that holds the process together when other factors threaten it. The attorneys bear the responsibility of representing their clients interests while seeking agreement, and the neutral financial professional bears the responsibility to accurately and reliably hold, process, and educate regarding the financial data. It is the mental health professional, however, who bears the responsibility for overseeing the process as a whole. This means monitoring the spouses readiness for each step, each team member s compliance in achieving stated goals, and the pacing of the meetings (both within the day and across time). Because the job of overseeing the process is so critical, it is my opinion that the title used for the mental health professional should reflect this aspect of his or her service. There are several terms that are commonly used for the mental health professional who leads the collaborative team. These terms are Neutral Mental Health Professional (or Neutral MHP, or Mental Health Neutral), Neutral Coach, and Collaborative (or Neutral) Facilitator. While all of these terms are considered acceptable, and professionals in different regions lean toward one term or another, I propose using the latter title, specifically Collaborative Facilitator, or better yet, simply, Facilitator. There are four reasons why I propose the use of the title of Collaborative Facilitator, or Facilitator, as preferable to the other alternatives. First, as already noted, it more accurately represents the role as the keeper of the process. Second, it reduces the resistance to the idea of having a mental health professional involved. Many spouses, and some attorneys, find that the mental health part of Neutral Mental Health Professional carries a stigma. We have all heard more than one spouse make comments such as, I don t need a shrink to get me through this divorce! Others reject the idea of including a team member who is labeled as a mental health professional because, when so identified, it seems unnecessary and

438 therefore expendable. The typical and understandable statement often heard in this regard is, This collaborative thing is expensive enough, let s cut out the nonessentials, like the therapist. Third, minor though it may seem, it is simply less cumbersome to use a shorter title. It is a mouthful to say Neutral Mental Health Professional every time that professional is referred to by role, whereas Facilitator is short and sweet. Lastly, for all of the reasons already noted, this preferred title holds the edge when it comes to marketing the collaborative process as a whole. It provides a clearer, more accurate, less stigmatized, and simpler way of describing the pivotal role of one of the two key neutrals. Certainly, the collaborative movement will continue to thrive regardless of how we refer to the mental health professional serving on the collaborative team. It is not a disaster if we all use the title Neutral Mental Health Professional, and it is not a deal-breaker if some refer to the mental health professional by one title and others use a different title, even within the same practice group. If our goal, however, is to constantly tweak our process to make it better, however, then I propose that this idea be given careful consideration. There are sound arguments for identifying this role as Collaborative Facilitator, including the benefits of uniformity and consistency within the movement. I encourage you to consider this proposal, share it with others in your practice groups, and carry on the discussion. If you would want to share your thoughts about this subject with Dr. Gaies, he can always be readily reached at [email protected].

439 The Collaborative Practice Groups in Florida Collaborative Family Law Institute, Inc. (Miami) Counties Serving: Miami-Dade County President: Robert J. Merlin, Esq. 95 Merrick Way, Suite 420, Coral Gables, Florida Phone: Representatives: Robert J. Merlin, Esq. Rosemarie S. Roth, Esq. Edward S. Sachs, CPA Lana M. Stern, Ph.D. Collaborative Family Law Professionals of South Florida (Broward County) President: Steve Berzner, Esq Bayview Drive, Ste. 605, Ft. Lauderdale, FL Phone: (954) Representatives: Iris M. Bass, Esq. Randy Heller, Ph.D. Enid Miller-Ponn, Esq. Collaborative Divorce Lawyers Association of Palm Beach, Inc. (Boca Raton) President: Jeanne Rose, Esq. 999 SW 17th St., Boca Raton, Florida Phone: Representative: Joy Bartmon, Esq. Jeanne Rose, Esq. Collaborative Divorce Team, Inc. (West Palm Beach) President: Charles Jamieson, Esq Forum Place, Suite 500, West Palm Beach, Florida Phone: Representative: Charles Jamieson Collaborative Family Law Group of Central Florida (Orlando) Counties Serving: Orange, Seminole, Lake and Osceola President: Wendy Aikin. Esq. P.O. Box 787, Winter Park, Florida Phone: Representatives: Deborah O. Day, Psy.D. Elaine Silver, Esq. Thomas V. Behan, CPA Collaborative Lawyers of Southwest Florida (Ft. Myers) President: Jayne Webb - Martin, Esq. P.O. Box 1470, Ft. Myers, Florida Phone: , ext [email protected] Representative: Sheldon Finman, Esq. [email protected] Jayne Webb - Martin, Esq. [email protected] Tampa Bay Collaborative Divorce Group (Tampa) Co-Chairs: Fraser Himes, Esq. Robert Kokol, CPA Bank of America Plaza, 101 E Kennedy Blvd, Tampa,,FL Phone: [email protected] [email protected] Representatives Caroline K. Black, Esq. [email protected] Nancy Harris, Esq. [email protected] Jeremy Gaies, Psy.D. [email protected] Collaborative Divorce Institute of Tampa Bay (Tampa) President: Christine Hearn, Esq. 101 E. Kennedy Blvd., Ste. 2430, Tampa, FL Phone: [email protected] Representative: Christine Hearn, Esq. [email protected] Joryn Jenkins, Esq. [email protected] James Spicer [email protected] Collaborative Divorce (Gainesville) Counties Serving: Alachua, Bradford, Baker, Levy, Gilchrist, Union President: Ruth Angaran, M.Ed., MSW, LCSW 2610 NW 43rd Street, Suite 2A, Gainesville, Florida Phone: [email protected] Representative: Pamela Schneider, Esq. [email protected] Jean Westin, Esq. [email protected] Collaborative Family Law Group of Northeast Florida (Jacksonville) Counties Serving: Duval, Clay, St. Johns, Nassau and Baker President: Connie Byrd, Esq. 302 Third Street, Suite 6, Neptune Beach, Florida Phone: [email protected] Representatives: Connie Byrd, Esq. [email protected] Nancy Adair Cleaveland, Esq. [email protected]

440 Deborah O. Day, Psy.D. LMHC/Licensed Psychologist Certified Family Mediator

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