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Wednesday, September 09, 2009

An Alternative to the Adversarial Divorce and Custody Process:
Collaborative Attorneys and Psychologists

by David F. Tamanini, Esq., Samuel Knapp, Ed.D.

reprinted from the Pennsylvania Psychologist

Psychologists who treat families going through a divorce see the great pain and turmoil that can occur. Parents may feel anger at each other, and children may respond with anxiety and depression or defiant and aggressive behaviors. Many attorneys and psychologists drawn into the litigation process would rather find other ways of dealing with these high-conflict disputes. And now, a new alternative to litigation is being used by specially trained attorneys. Originally just lawyers, but increasingly with consultants as team members, these professionals minimize a focus on the past, and show how to maximize the possibility of realizing future goals in a win-win process for the divorcing couple.
Many times, before and after divorce, parents are able to set aside their disappointments and frustrations and work together to develop a parenting plan in the best interest of the child. Indeed it has been stated that the greatest gift that divorcing parents can give their children is a sense of respect and courtesy for the other parent.
However, when divorcing parents are unable to agree to a parenting plan, they usually turn to the courts to determine the child care arrangements. On the other hand, therapists know that the court’s custody determination process itself can be expensive and iatrogenic. As part of the adversarial process each party must highlight their parenting strengths and disparage the skills of the other parent. At times the process is brutal. The ill feelings existing at the time the divorce decision is made can increase as the other party becomes more defensive and hostile. Embarrassing actions may become public, minor parenting errors may be presented as indications of major character flaws, and motives of revenge may get intermingled with sincere interests to consider the welfare of the children. Friends and extended family members may be asked to take sides and testify on behalf of one party or the other, thus damaging their relationships with the other spouse. The ability to communicate may become impaired as a consequence of the courtroom-centered custody determination process. It is hard for parents to work cooperatively with each other after the opposing attorney tries to rake them over the coals in court. Sometimes the intensity of anger that the litigation process can generate tempts one or both parents to inflict as much damage as possible on the other party.
Alternative dispute resolution (ADR) mechanisms have been advanced to minimize the harm to the families in the litigation process. As a prelude to a court hearing, most counties in Pennsylvania will mandate a conciliation conference, mediation, or some other ADR.
Today in many Pennsylvania counties there is a new alternative to the court-centered divorce process itself. The collaborative process is a settlement-oriented arrangement that avoids the courts completely. In the collaborative process, the couple, along with the attorneys who represent each of them, meet and resolve differences in the divorce including financial and parenting decisions. The process is structured to reinforce cooperation and respect among the parties. For example, the parties and their specially trained collaborative attorneys and professional consultants, such as mental health experts, child experts, accountants, and financial planners, work as a team. Both spouses have their own attorney to advise them, but the couple and the attorneys agree ahead of time that the attorneys will not represent either party if the collaborative process terminates at an impasse. In other words, the attorneys have no incentives to prolong the divorce process, to needlessly antagonize the other party, or to act as a tool of revenge for their clients. If the process breaks down and the parties eventually litigate, the attorneys and consultants will be disqualified as witnesses and their work product will be inadmissible unless otherwise agreed. The collaborative divorce process appeals to many divorcing couples who desire to keep or regain adequate relationships with each other to ensure future harmony between and among the entire family.
The time spent in the collaborative process varies depending on the number and complexity of the issues, the degree of conflict riding below the surface, and ability of the participants to stay focused (either with or without the use of coaches, see below). The cost is generally less than the expense that would be generated by an adversarial divorce and custody battle stretching over years. Finally, the process appeals to many participants because they, not the court, determine the pace of the process and the outcome. Data reported to the International Academy of Collaborative Professionals in 2008 shows that approximately 87% of the cases are able to reach mutually acceptable agreements in divorce (and about 3% of couples actually reconcile).
Psychologists and the Collaborative Process
Psychologists who treat patients of divorcing families and see the “carnage" can inform divorcing families of the option of using the collaborative process and explain the ways that the children and both parties can benefit when restraint and cooperation are the model. A list of Web sites of collaborative process practice groups originally founded by attorneys in Allegheny County, Central Pennsylvania, and Bucks County, as well as the International Academy of Collaborative Professionals, can be found at the end of this article.
Also, psychologists or other mental health professionals are needed as neutral non-therapeutic team members in collaborative process cases. For example, many attorneys working through the collaborative process desire psychologists to act as "process coaches" whose goal is to help the parties get through the collaborative process. There are single-coach and two-coach models to choose from. The process coaches help clients to articulate thoughts, clarify and act on their intentions, or listen more carefully to each other. Other psychologists can serve as neutral "parenting coaches" and give parents general as well as specific information and guidance about the emotional impact of divorce on the children, explain events to the children, teach parents how to reassure them, and when a referral to a mental health professional may be indicated, make a referral.
Typically the coaches are paid directly by the parties under a fee agreement. They will not appear in court because as part of the collaborative process as consultants, their opinions, advice, and knowledge of the collaborative process discussions may not be entered into court at a later date. Psychologists who participate in the collaborative process need to have basic psychological skills and relationship management "for process coaches" or child developmental experience to serve as "child specialists." Participating consultants need to have training in the collaborative process. This training gives them knowledge of the skills, the focus of the attorneys, and a deeper understanding of the collaborative process itself.
At the June 2009 Annual Convention, the Pennsylvania Psychological Association will present a program sponsored by the Independent Collaborative Attorneys of Central Pennsylvania (ICACP) on the Collaborative Process. The ICACP is developing an in-depth consultant/coaching training program in November 2009 to give interested psychological professionals and others the opportunity to present themselves as collaborative-process trained. The ICACP’s most expansive goal to date is to create a new multi-disciplinary practice group this year where attorneys and consultants will be equal members giving greater depth to the evolution and growth of the collaborative practice in Central Pennsylvania. To add your name to a list of e-mail recipients of ICACP’s e-mail news and training newsletter, send your contact information to dft@TamaniniLaw.com.
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David F. Tamanini, Esq., practices family law and is a member of the South Central Pennsylvania Independent Collaborative Attorneys of Central Pennsylvania (ICACP) and the International Academy of Collaborative Professionals.
Web sites and contacts of practice groups:
Alleghenies Region Collaborative Caucus in Cambria County. Contact Linda Rovder Fleming at (814) 262-2123 in Johnstown, PA.
Collaborative Family Law Affiliates: www.nocourtfamilylaw.com. Contact Maribeth Blessing, Rockledge, PA, (215) 392-0849, or Ellen Fischer, Willow Grove, PA 19090, (215) 346-4296.
Collaborative Law Association of Southwest PA: www.clasplaw.org. Contact Paula Hopkins.
ICACP: www.collaborativelawpa.com
International Academy of Collaborative Professionals: www.collaborativepractice.com
PA Collaborative Practice (Berks/Schuylkill): www.pacollaborativepractice.com Contact Diane Hitzemann or Linda Pellish.