Vermont Bar Association Seminar Materials 2019 Annual Meeting … · 2019-09-23 · Collaborative...

Vermont Bar Association

Seminar Materials

2019 Annual Meeting

Bridging Gaps:

The Collaborative Divorce Model in Action

September 27, 2019

Hilton Burlington Lake Champlain

Burlington, VT

Speakers:

Lindsey Huddle, Esq.

Nanci Smith, Esq.

Corey Wood, Esq.

Collaborative Practice San Mateo County Role of the Divorce Coach September 2017

THE ROLE OF THE DIVORCE COACH

The Divorce Coach is a mental health professional who has expertise and experience in helping individuals in a divorce. The Divorce Coach assists you in managing emotions and moderating reactions. These skills contribute to productive communications both during the Collaborative Divorce and in the future. Productive settlement discussions can shorten the divorce process and open the door to more quickly finding solutions that are acceptable to both of you, resulting in a more durable settlement. Each of you will have your own Divorce Coach.

The role of the Divorce Coach:

• Communicate Effectively: Develop new strategies to present your ideas, objections, and concerns so that you are heard and understood.

• Manage Stress: Develop strategies to manage your reactivity to your spouse, as well as to your own stress, so that you are effective during the process and after divorce.

• Articulate Goals and Interests: Identify what you want for yourself and others in the divorce process and develop the skills to express yourself in a clear, assertive, and non-threatening manner.

• Develop a Parenting Plan: Assist you to explore ways to cooperate as parents living in two homes and developing a co-parenting plan based on your children’s best interests.

You should meet with your Divorce Coach prior to the initial Collaborative meeting and as frequently thereafter as is helpful to you. Your Divorce Coach will help you prepare for your meetings with your spouse and the other members of your Collaborative Team.

Collaborative Practice San Mateo County Role of the Child Specialist September 2017

THE ROLE OF THE CHILD SPECIALIST

The Child Specialist is a mental health professional who has expertise and experience working with children and parents going through separation and divorce. The Child Specialist brings the voice of each child into the process and serves on the team as a neutral representative of each child’s needs and preferences in the divorce process. A Child Specialist can provide valuable assistance whether your children are minors or adults.

The Role of the Child Specialist:

• Educate: Assist you to understand the post-separation needs of each child and provide education related to enhancing a child’s adjustment to the divorce.

• Privacy: Provide a safe place for your children to be heard.

• Parental Involvement: Elicit your shared vision for your respective involvement in each child’s life now and in the future.

• Children’s Concerns: Assist you to understand each child’s possible living preferences and concerns about current parenting.

• Co-Parenting Decisions: Provide you with information you need to better understand what is happening to your children and to make important co-parenting decisions.

• Conflict: Assist with conflict disengagement and improved co-parenting.

The Child Specialist will talk with you and your children about the divorce. Your Child Specialist will meet with you, the other parent, and your Divorce Coaches to share important information that will assist you in creating your parenting plan.

Collaborative Practice San Mateo County Role of the Financial Specialist September 2017

THE ROLE OF THE FINANCIAL SPECIALIST

The Financial Specialist is a neutral professional in the Collaborative Divorce process. The Financial Specialist is specially trained to analyze your family’s economic circumstances and to assist both of you in reaching creative solutions to what may be difficult financial problems. By acting as a neutral, communication between you regarding immediate financial concerns and long-term goals is facilitated, making it easier for both of you to reach a mutually satisfactory and informed settlement.

The role of the Financial Specialist:

• Financial Concerns: Identify and clarify the financial needs and concerns of your family and provide a thorough understanding of your family’s financial situation.

• Data Analysis: Analyze data related to your family’s income, expenses, and liabilities and assist with completing the required Declarations of Disclosure.

• Family Budget: Assist in creating a reasonable family budget with special attention to the financial arrangements for your children and their changing needs over time.

• Settlement Scenarios: Contrast and compare different settlement scenarios, identify short-and long-term economic consequences and empower the couple to make informed financial decisions.

• Financial Solutions: Assist in formulating constructive and creative solutions to complex financial problems through communication and collaboration with all members of the interdisciplinary team.

• Financial Guidance: Provide ongoing practical financial guidance during the divorce process and assist with the implementation of various financial components of the couple’s final agreement, if necessary.

Collaborative Practice San Mateo County Role of the Collaborative Lawyer September 2017

THE ROLE OF THE COLLABORATIVE LAWYER

The Collaborative lawyer is trained to work in a non-adversarial manner with you as part of your Full Collaborative Team. Your Collaborative lawyer assists your decision-making with information about the legal aspects of your marriage and its dissolution. Each of you will have your own Collaborative lawyer. Your Collaborative Lawyer will not go to court or litigate on your behalf.

The role of the Collaborative Lawyer:

• Advocacy: Understand your interests and be an advocate for what you say is important.

• Support and Guide: Provide support and guidance during your Collaborate divorce through questions, observations, and suggestions.

• Advise: Legal advice about your rights and obligations.

• Organize: Identifying, collecting, and analyzing information you need to make informed decisions.

• Consider Possibilities: Consider the feasibility of possible solutions.

• Draft Agreements: Prepare your settlement agreement and other required documents.

• Prepare Court Forms: Preparation and filing of the paperwork required to obtain a Judgment or other agreed-upon court order.

Collaborative Practice San Mateo County The Collaborative Process Sepember 2019

Collaborative Practice – How it Works for the Client With thanks to Collaborative Divorce Team Trainings

Generate & Evaluate Choices What choices do we both have?

Reach Agreement

What choices can we both accept?

Gather & Organize Information What information do we need?

Concerns What questions do we want to answer?

Hopes What is important to us?

Commitment Why are we here?

What brought us to Collaboration?

Collaborative Practice San Mateo County The Collaborative Process September 2017

GOALS AND INTERESTS

INFORMATION GATHERING

INFORMATION EVALUATION

OPTION GENERATION

OPTION EVALUATION

RESOLUTION

CO

LL

AB

OR

AT

IVE

PR

OC

ESS

Collaborative Practice San Mateo County Role of the Child Specialist September 2017

COMMUNICATION AND PARTICIPATION GUIDELINES

1. Speak only for yourself. Use ‘I’ statements. When you speak for yourself, you use “I,” “me,” or “my.” When you speak for yourself you take responsibility for what you say and your own statements.

2. Avoid language about the other that is critical, judgmental, accusatory, blame-oriented, sarcastic or inflammatory.

To understand the value in this principle, ask yourself how well you respond to this type of language.

3. Listen without interruption. Listen in order to understand. You will listen better and hear more if you avoid interrupting. See if you can summarize what the other person said and ask questions about what you heard.

4. Recognize the futility of arguing. Instead of challenging or arguing with the other party, identify your perspectives, interests, and beliefs and listen for what you can learn about the other party’s perspectives, interests and beliefs.

5. Commit to the fullest development of choices and alternatives. The widest range of all possible choices will only be developed by each party having the ability to express all interests, perspectives and objectives. Your self-interest is served by contributing to the creation of the widest range of choices.

6. Just say, “No.” The process is entirely voluntary, and no amount of legal force will be used to create an outcome over the objection of the other. Each party is empowered to control the outcome by having the right to say “no” to anything that is not acceptable to his or her.

7. Be effective. Can you think of any better word to characterize your conduct in the process than “effective?” Measure the value of anything you say or do by asking whether it is effective in advancing you to your desired goals or objectives.

8. Recognize your own process needs and respect those process needs of the other. A party needs to go through his/her own development of the issues, evaluation of options and determination of needs. The more prepared to negotiate each party is, the more successful the agreement will be for each. Be mindful of conduct that interferes with the process needs of the other. Make it safe for the other to say what he/she needs to say.

9. Be empowering. Take responsibility for your feelings, your interests, and your choices. Holding another responsible for how you feel, what you need and what you choose, serves only to make you dependent on that other person. By taking responsibility for your feelings, your needs and your choices, you take control over your life in every meaningful situation.

HYPOTHETICAL TO DISCERN INTERESTS, GOALS, CONCERNS AND VALUES

vs POSITIONS

Joe and Sue have been married for 15 years. Joe is 45 and Sue is 41. They have two minor children, a 10 year old daughter with an anxiety issue and an 8 year old son who is showing promise to be a hockey star.

Both parents state that their children are their highest concerns. Sue says that Joe has been a good father, but a bit "unreliable."

Three years ago they moved to Vermont from the Midwest, primarily because Sue was offered a great career opportunity in Burlington. Joe was able to find work but earns less than Sue does. He says that his current job is "super stressful" compared to his prior position before moving to Vermont. Sue is thriving in her new work environment and loves her job. She recently was promoted again, and her wages are now two and half times higher than Joe's, plus executive benefits, and stock options.

Joe's current base salary is 80,000; Joe's gross salary for the last 4 years before this job was: 120K, 118K; 115K and 110K. Sue's gross salary for the past 4 years before the new promotion was 160; 180; 190; 200K.

Sue wants to divorce and move on with her life. Sue told her lawyer that she doesn't want to have to pay Joe "for the rest of his life." She said she is "tired of having to always take care of him and there are "some things she just won't give in on."

Joe believes that if they had not moved away from their hometown and to Vermont that they would still be together. He blames Sue for the move and disintegration of the marriage. All of Joe's concerns that he shared with his lawyer are centered on his belief that he needs to be as financially "whole" as when they lived in the mid west as compared to the lower standard of living that he anticipates post-divorce living in Vermont. Joe thinks that it would be fair that he get as much child support and spousal support as it would take to create a cash flow for him that is equal to Sue's. If she won't be 'reasonable' then he will have no choice but to take it to court.

At the time of the divorce there was a family home with about 340K in equity; 200K in cash/saving; 400K in vested stock options from Mary's job and 200K in unvested options; and about 600K in investments and retirement and no debt other than the mortgage on the house.

They each estimate that their respective annual expenses moving forward will be about 100K. During the marriage neither party looked at the Stock Options as funds for current living expenses and said it was only for retirement.

STANDARDS AND ETHICSInternational Academy of Collaborative Professionals

1. Preface

2. IACP Definition of Collaborative Practice

3. IACP Minimum Ethical Standards for Collaborative Professionals

4. IACP Minimum Standards for Collaborative Practitioners

5. IACP Minimum Standards for Introductory Collaborative Practice Trainings and Introductory Interdisciplinary Collaborative Practice Trainings

6. IACP Minimum Standards for Collaborative Practice Trainers

CONTENTS:

STANDARDS AND ETHIC SInternational Academy of Collaborative Professionals

2

Preface

IACP’s mission is to transform how conflict is resolved worldwide through Collaborative Practice. Collaborative Practice involves a fundamentally different approach than traditional methods of conflict resolution, resulting in the need for unique Standards and Ethics.

IACP has adopted these Standards and Ethics to promote the essential elements of Collaborative Practice and to establish core principles and requirements designed to advance:

• consistency of practice

• a common set of expectations for professionals and clients

• a high level of integrity for the benefit of clients

The Standards and Ethics consists of these parts:

1. Definition of Collaborative Practice identifies the fundamentals of the process.

2. Minimum Ethical Standards for Collaborative Professionals provides guidance to professionals regarding competence, confidentiality, advocacy, and professional roles with respect to questions and situations not addressed by other traditional rules of professional conduct.

3. Minimum Standards for Collaborative Practitioners delineates essential training, licensure, and experience for professionals.

4. Minimum Standards for Introductory Collaborative Practice Trainings and Introductory Interdisciplinary Collaborative Practice Trainings provides the elements that introductory Collaborative trainings must include.

5. Minimum Standards for Collaborative Trainers specifies minimum qualifications that trainers should have in order to provide an effective training.

IACP Standards and Ethics are designed to establish minimum expectations for professionals, and to support the goal of ensuring that Collaborative Practice retains quality, consistency, and integrity.

IACP is not a regulatory body. IACP Standards and Ethics do not form a basis for determining whether a practitioner is subject to legal liability or disciplinary action.

3

IACP Definition of Collaborative Practice1

Collaborative Practice is a voluntary dispute resolution process in which clients resolve disputes without resort to any process in which a third party makes a decision that legally binds a client. In Collaborative Practice:

1. The clients sign a Participation Agreement describing the nature and scope of the matter that is consistent with the IACP Ethical Standards;

2. The clients voluntarily disclose all information which is relevant and material to the matters to be resolved;

3. The clients agree to use good faith efforts in their negotiations to reach a mutually acceptable resolution;

4. Each client must be represented by a Collaborative Lawyer whose representation terminates upon the undertaking of any Proceeding as defined in the IACP Ethical Standards;

5. The clients may engage mental health and financial professionals whose engagement terminates upon the undertaking of any Proceeding; and

6. The clients may jointly engage other experts as needed.

1Initially adopted by the IACP Board of Directors on October 13, 2011 and amended on June 21, 2017.

4

I. General Standards Applicable to All Collaborative Professionals

1.0 Terminology

A. Collaborative Practice

B. Collaborative Professional

C. Conclusion

D. Material Information

E. Participation Agreement

F. Proceeding

G. Resolution

H. Termination

1.1. Resolution of Conflicts between IACP Ethical Standards and Requirements Regulating Professionals

1.2 Competence

1.3 Priority of Client Interests

1.4 Confidentiality and Privilege

A. Confidentiality—General Rule

B. Confidentiality Before the Participation Agreement Is Signed

C. Protecting Privilege and Confidentiality

1.5 Promoting Collaborative Practice

II. Commencing the Collaborative Process

2.1 Commencement of the Collaborative Process

2.2 Required Process Disclosures

2.3 Effective Participation in Process

2.4 Consideration of Likelihood of Reaching Resolution

2.5 Fee Agreement or Confirming Writing

2.6 Required Participation Agreement

III. The Collaborative Process

3.1 Disclosure of Information

3.2 Advocacy in the Collaborative Process

3.3 Good Faith Negotiation

3.4 Professional Teamwork

3.5 Neutral Roles

3.6 Financial Specialists

3.7 Mental Health Professionals

3.8 Circumstances that Require Counseling Clients

3.9 Resignation and Discharge

3.10 Circumstances that Require Resignation

3.11 Notice of Resignation

3.12 Prohibition Against Participating in a Proceeding—General Rule

3.13 Sole Exception to Prohibition Against Participating in a Proceeding

IV. Conclusion of the Collaborative Process

4.1 Conclusion

4.2 Terminating Events

4.3 Notice Requirement in Case of Termination

4.4 Professional Services after Resolution of Process

A. Child Specialists and Coaches

B. Financial Specialists

C. Collaborative Lawyers

4.5 Professional Work after Termination of Process

IACP Minimum Ethical Standards for Collaborative Professionals2

CONTENTS

2Initially adopted in 2004, the Ethical Standards were revised in 2008 and restated in June 2017.

5

Introduction Collaborative Practice is a distinct dispute resolution model that challenges professionals in ways that may not be addressed by the ethical standards of individual disciplines or other dispute resolution models. The Standards that follow:

1. Create a basic framework for ethical and professional conduct by the Collaborative Professional that is consistent with each professional’s ethical responsibilities;

2. Provide a common set of values, principles, and standards to guide the decisions, conduct, and teamwork of the Collaborative Professional; and

3. Identify responsibilities of Collaborative Professionals to their clients, Collaborative colleagues, and the public.

I. GENERAL STANDARDS APPLICABLE TO ALL COLLABORATIVE PROFESSIONALS

1.0 Terminology. As used in these Standards:

A. “Collaborative Practice” or the “Collaborative Process” has the meaning set forth in the IACP’s Definition of Collaborative Practice, which is:

Collaborative Practice is a voluntary dispute resolution process in which clients resolve disputes without resort to any process in which a third party makes a decision that legally binds a client. In Collaborative Practice:

1. The clients sign a Participation Agreement describing the nature and scope of the matter that is consistent with the IACP Ethical Standards;

2. The clients voluntarily disclose all information which is relevant and material to the matters to be resolved;

3. The clients agree to use good faith efforts in their negotiations to reach a mutually acceptable resolution;

4. Each client must be represented by a Collaborative Lawyer whose representation terminates upon the undertaking of any Proceeding as defined in the IACP Ethical Standards;

5. The clients may engage mental health and financial professionals whose engagement terminates upon the undertaking of any Proceeding; and

6. The clients may jointly engage other experts as needed.

B. “Collaborative Professional” means a professional who has acknowledged participation in the Collaborative Process as provided in Standard 2.1. For consistency, this terminology is used to generally describe certain roles of Collaborative Professionals:

1. “Coach” refers to a mental health professional whose function relates primarily to the emotional dynamics and communications between the client(s).

2. “Child Specialist” refers to a mental health professional whose function relates primarily to the children or other dependent(s) of the client(s).

6

3. “Financial Specialist” refers to a financial professional whose function relates primarily to the financial concerns of the client(s).

4. “Collaborative Lawyer” refers to a legal professional whose function relates primarily to the legal concerns of the client(s).

Comment: These definitions are provided solely to clarify the terminology used in these Standards. Collaborative Practice groups around the world use a variety of names to describe the professionals who perform these functions. These are not the only professional roles that may exist in a Collaborative matter. These Standards do not require the use of any particular titles or professional team configuration. These Standards do not modify the IACP Minimum Standards for Collaborative Practitioners.

C. “Conclusion” means either a “Resolution” or “Termination” as defined below.

D. “Material Information” means information that is reasonably required for the client(s) to make an informed decision with respect to the Resolution of the matter.

E. “Participation Agreement” means a writing signed by the clients that complies with Standard 2.6.

F. “Proceeding” means any process in which a third party makes a decision that legally binds a client, including a court, administrative proceeding, arbitration, and any other tribunal. A Proceeding may be contested or uncontested.

G. “Resolution” means a written agreement signed by the clients addressing the issues in the dispute, and if required to be implemented or made enforceable, the agreement has been approved or ratified by a court or other authority. “Resolution” includes an agreement addressing some but not all of the issues if the clients have agreed that the remaining issues will not be resolved in the Collaborative Process.

H. “Termination” means a terminating event defined in Standard 4.2 has occurred.

1.1 Resolution of Conflicts between IACP Ethical Standards and Requirements Regulating Professionals. The resolution of any conflict between these Standards and the ethical or professional responsibility requirements regulating the professional will be controlled by the ethical or professional responsibility requirements regulating the professional.

1.2 Competence.

A. Collaborative Professionals must comply with professional conduct requirements applicable to their professions.

B. Collaborative Professionals must be in good standing under the licensure or certification required by their professions.

C. Collaborative Professionals must at all times meet all requirements of the IACP Minimum Standards for Collaborative Practitioners.

D. Collaborative Professionals will respect the expertise, skill and experience of other members of the professional team. Collaborative Professionals will not provide services for which they are not qualified by education, training or experience. Collaborative Professionals will be mindful of the clients’ individual circumstances

7

and the overall circumstances of the matter that may require others to be on the Collaborative Professional team or be involved as consultants.

Comment: Collaborative Professionals are confronted by financial, psychological, emotional, cultural, physical, and other factors that affect professional and client participation in the process. It is important for the professional to be able to recognize these factors, as they will necessarily influence the Collaborative Process and client decision making. In fully addressing client needs, interests and goals, the Collaborative Professional must be willing to turn to other professionals, such as lawyers with special expertise, mental health professionals, medical professionals, financial professionals, vocational specialists, specialists in the areas of physical disability, substance abuse, domestic violence, and others. In working with other specialists, Collaborative Professionals and clients should fully understand how transparency, confidentiality and privilege will apply to those specialists.

1.3. Priority of Client Interest.

A. Collaborative Professionals must always place the interest of their clients above their own personal, financial or professional interests. Where the interests of a professional and any client(s) are or could be in conflict, that Collaborative Professional must either (1) decline to accept the matter, or (2) resign if the conflict cannot be disclosed, is not waived, or is not waivable.

B. Conflicts between the interests of a client and a professional include any circumstance where there is a risk that the professional’s responsibilities under these Standards will be materially affected by a personal, financial, or professional relationship with the client(s), a current or former client, a professional working on the matter, or a third person.

C. Prior to seeking waiver of a conflict between the interests of the client and the professional, the professional must candidly advise the client(s) of the benefits and risks of the professional’s involvement including how the conflict could impair the professional’s objectivity, competence or effectiveness.

D. A Collaborative Professional will not accept a sum of money or a gift of more than minimal value for the referral of the professional’s Collaborative client(s).

1.4. Confidentiality and Privilege.

A. Confidentiality—General Rule. A Collaborative Professional will not disclose information about the client(s) that was learned during the Collaborative Process, unless: (1) all affected clients consent, (2) the disclosure is mandated by law (including court or administrative order), (3) the professional has a reasonable belief that a client may harm persons or property, or (4) related to a dispute or complaint concerning the professional’s work or fees during the Collaborative Process.

Comment: The obligations of Collaborative Professionals to maintain confidentiality is accompanied by the obligation of clients and Collaborative Professionals to provide full disclosure of Material Information in the Collaborative Process. Accordingly, professionals must obtain consent from their clients to comply with Standards 3.1, 3.3 and 3.4.

B. Confidentiality Before the Participation Agreement Is Signed. Before the Participation Agreement is signed, a Collaborative Professional will

8

not disclose a client’s private information and confidences, except to the extent allowed by that professional’s ethics and professional responsibility requirements, or with the informed consent of the client.

Comment: Information shared between clients, or between prospective Collaborative Professionals, prior to the commencement of the Collaborative Process may not be protected by the evidentiary privilege for Collaborative communications where it exists.

C. Protecting Privilege and Confidentiality. In jurisdictions with an evidentiary privilege for Collaborative communications, a Collaborative Professional will do all things necessary to ensure the privilege applies to the Collaborative Process. If no such privilege exists in the jurisdiction, a Collaborative Professional will include all provisions necessary in the Participation Agreement or other contract to maximize the probability that communications within the process will remain confidential and inadmissible in a Proceeding.

1.5 Promoting Collaborative Practice. A Collaborative Professional must be truthful, candid and forthright when promoting Collaborative Practice to potential clients.

II. COMMENCING THE COLLABORATIVE PROCESS

2.1 Commencement of the Collaborative Process. The Collaborative Process commences when the Participation Agreement is signed by the clients, and their Collaborative Lawyers have acknowledged in writing their representation in the Collaborative Process.

2.2 Required Process Disclosures.

A. A Collaborative Lawyer must inform the prospective client(s) of the full range of process options available for addressing any legal matter(s), and provide information reasonably necessary to enable the client to make an informed process choice.

Comment: This Standard parallels the Uniform Collaborative Law Act/Rules by imposing requirements on the Collaborative Lawyer to provide clients information about the potential risks and benefits of each available process option. This information includes the possible relative financial costs and the impact on ongoing and future relationships. This Standard does not limit any Collaborative Professional from offering information about process options or an opinion about the appropriate process for the client’s matter.

B. Prior to commencing the Collaborative Process, a Collaborative Professional must take reasonable steps to ensure that the client understands that the Collaborative Process (1) is voluntary, (2) can be terminated at any time, and (3) is subject to the requirements of Ethical Standards 3.1, 3.2, 3.3, 3.4, 3.12, and 3.13.

Comment: Because the exercise of the professional’s responsibilities in the Collaborative Process may be different from the clients’ expectations, informed consent is extremely important. The professional must take reasonable steps to give the client a meaningful understanding about the process and expectations of the professional. Such steps will differ depending on the individual client, and could require dialogue and confirming writings. See Standards 2.5 and 2.6.

9

2.3 Effective Participation in Process. A Collaborative Professional must suspend the Collaborative Process or resign if the professional has a reasonable belief that a client is unable to effectively participate in the process.

2.4 Consideration of Likelihood of Reaching Resolution. Before a Participation Agreement is signed, and throughout the Collaborative Process, a Collaborative Professional must assess the likelihood that a Resolution can be reached in a manner consistent with these Standards and within a timeframe appropriate to the matter and to the client(s) circumstances. If a professional has a significant concern whether Resolution can so be reached, the professional must take action appropriate to the concern.

Comment: In making the assessment, a Collaborative Professional must consider whether the Collaborative Process can effectively address the clients’ specific circumstances, needs and concerns. If action is warranted, actions may include conferring with the client(s) about the professional’s concerns, conferring with the professional team, modifying the approaches and techniques used in the process, providing additional support for the client(s), helping the client(s) select professionals or a process more suitable for the circumstances, or declining or resigning from the matter.

2.5 Fee Agreement or Confirming Writing. A Collaborative Professional will provide the client(s) a written fee agreement (or other writing) that describes the scope and limitations of that Collaborative Professional’s services to the client(s) in the Collaborative Process, the circumstances under which the professional may resign or terminate the process, and the professional’s fee structure and billing practices.

2.6 Required Participation Agreement. Collaborative Practice requires a written Participation Agreement that:

A. Is consistent with these Standards;

B. Binds the clients and all Collaborative Professionals to the Collaborative Process; and

C. Includes these elements at a minimum:

1. The prohibition described in Standard 3.12.

2. The requirement to disclose information as described in Standard 3.1.

3. The requirement to negotiate in good faith as described in Standard 3.3.

4. The conditions under which a professional may resign or terminate the Collaborative Process as described in Standard 3.10.

5. The conditions under which the Collaborative Process terminates as described in Standard 4.2.

Comment: Both the client(s) and the Collaborative Professionals must be bound in writing to the Collaborative Process. It is not required that all be bound in the same document.

III. THE COLLABORATIVE PROCESS

3.1 Disclosure of Information.

A. The Collaborative Process requires the full and affirmative disclosure of all

10

Material Information whether or not requested.

B. The Collaborative Process requires clients and professionals to comply with all reasonable requests for information.

3.2 Advocacy in the Collaborative Process.

A. A Collaborative Professional will respect each client’s self-determination, recognizing that ultimately the clients are responsible for making the decisions that resolve their issues.

B. A Collaborative Professional will assist the client(s) in establishing realistic expectations in the Collaborative Process.

C. When the matter relates to the care and support of children, elders or other dependents, a Collaborative Professional will encourage the client(s) to consider the impact of decisions on the dependents.

D. A Collaborative Professional will consider the impact that the professional’s experiences, values, opinions, beliefs, and behaviors will have on the Collaborative matter.

E. A Collaborative Professional will avoid contributing to interpersonal conflict of the clients, including when identifying and discussing the clients’ interests, issues, and concerns.

3.3 Good Faith Negotiation.

A. The professionals must act in good faith in all negotiations and in the Collaborative Process, and must advise the clients that the Collaborative Process requires good faith negotiation.

B. Good faith negotiation requires that:

1. Each client and professional takes a thoughtful and constructive approach on all unresolved questions in the interest of reaching agreements.

2. Each client and professional complies with the Participation Agreement and any other formal and informal agreements made in the Collaborative Process.

3. No client or professional takes advantage of inconsistencies, misunderstandings, miscalculations, omissions, or inaccurate assertions of fact, law or expert opinion.

4. No client or professional threatens to undertake a Proceeding to coerce a particular outcome on an issue to be resolved by the Collaborative Process.

Comment: Collaborative Professionals must make diligent efforts to understand from the clients’ perspectives what is most important to them. Collaborative Professionals must be mindful to respect the dignity of all involved and maintain a high standard of integrity in negotiations Collaborative Professionals are not responsible for the behavior of clients, but must take reasonable steps to educate clients about the requirements of good faith negotiations. These interests, values, and priorities may go beyond traditional legal or other professional considerations.Clients who select the Collaborative Process have a reasonable expectation that their matter can and will be resolved by an agreement that is acceptable to all the clients. If the clients reach impasse, the professionals will encourage the clients to reconsider or create options that would be acceptable to all. This does not preclude a professional suggesting that a client

11

considers seeking other opinions or terminating the Collaborative Process.

3.4 Professional Teamwork. Each Collaborative Professional engaged in a matter has the responsibility, individually and with the other Collaborative Professionals, to manage the Collaborative Process effectively, efficiently, and in a manner that advances the clients’ common goal of reaching Resolution. This responsibility includes:

A. The obligation to inform the other professionals of facts or circumstances that are likely to impair or improve (1) the effective functioning of the Collaborative Process for the clients, (2) the likelihood of reaching Resolution, and (3) the ability of the professionals to work effectively together.

B. The obligation to monitor and coordinate the efforts of professional team members to avoid unnecessary delay and duplication of effort.

C. The obligation to examine the impact of the professional’s own conduct upon the functioning of the professional team and on the Collaborative Process. Each Collaborative Professional must act in a manner that advances the interest of all clients in reaching Resolution.

Comment: When a Collaborative Professional fails to communicate effectively, that failure can impact the productivity and efficiency of the Collaborative Process. Similarly, an interpersonal dispute or stylistic difference between professionals, or between a professional and one of the clients, may negatively impact the ability of the professional team to effectively manage the process.

3.5 Neutral Roles.

A. A Collaborative Professional who serves on a Collaborative matter in a neutral role must adhere to that role, and may not engage in any relationship that would compromise the Collaborative Professional’s neutrality. Except as otherwise specified in Standard 4.4, working with any client(s) or their dependent(s) outside of the Collaborative Process is inconsistent with a neutral role.

B. A neutral Collaborative Professional will give reasonable advance notice to the other professionals engaged in the matter prior to meeting with fewer than all the clients.

3.6 Financial Specialists. A Financial Specialist will not have any other business or professional relationship with a Collaborative client during or after the conclusion of a Collaborative matter, and will not sell or recommend the purchase of financial products or other services to a client in a matter which results in a financial benefit to the Financial Specialist.

3.7 Mental Health Professionals.

A. A person who has acted in a counseling capacity for a client or clients will not serve in the role of Coach or Child Specialist on a Collaborative matter involving that client or the client’s dependent.

B. A Collaborative Professional serving as a Child Specialist will inform the dependent about the Child Specialist’s role and the limits of confidentiality as appropriate, taking into account the dependent’s age and level of maturity.

12

3.8 Circumstances that Require Counseling Clients. If a Collaborative Professional learns that a client is acting in a manner that (1) is inconsistent with any provision of the Participation Agreement, (2) impedes the efficient and effective conduct of the Collaborative Process, (3) uses the Collaborative Process to achieve an unfair advantage, or (4) otherwise undermines the integrity of the Collaborative Process, the professional will advise and counsel the client about the potential consequences of continuing the conduct including the risk that continuation of the conduct could lead to mandatory professional resignation and/or Termination of the process.

3.9 Resignation and Discharge.

A. The resignation or discharge of a Collaborative Lawyer does not terminate the Collaborative Process if, within the time specified by law or by the Participation Agreement, the client engages a successor Collaborative Lawyer.

B. The resignation or discharge of a Collaborative Professional other than a Collaborative Lawyer does not terminate the Collaborative Process if (1) the client(s) engages a successor Collaborative Professional, or (2) the clients and all continuing Collaborative Professionals consent to proceed without a successor professional.

C. Any successor Collaborative Professional must agree in writing to be bound by the Participation Agreement.

Comment: The Collaborative Process must terminate if a client does not hire a successor Col-laborative Lawyer within the time specified. See Standard 4.2.C. There is no requirement that a resigning Collaborative Professional give a reason.

3.10 Circumstances that Require Resignation. A Collaborative Professional must resign under the following circumstances, provided that the professional has fulfilled the obligation to counsel and advise a client as set forth in Standard 3.8:

A. The professional’s client(s) intentionally misrepresents, withholds or fails to disclose Material Information, whether or not such information has been requested.

B. The professional’s client(s) takes unfair advantage of inconsistencies, misunderstandings, inaccurate assertions of fact, law or expert opinion, miscalculations, or omissions.

C. The professional has a conflict of interest that is not disclosed or is disclosed but not waived.

D. In any situation where, under the Participation Agreement or these Standards, the withdrawal of the professional is mandatory.

Comment: There may be circumstances when a professional has reached the conclusion that he or she cannot in good conscience continue to be effective in the process, or that the integrity of the process has been materially impaired in a manner that is not described above. In those circumstances, a professional may elect to resign under Standard 3.9.

3.11 Notice of Resignation. If a Collaborative Professional resigns, that professional will provide prompt written notification of the resignation to

13

that professional’s client(s), the other Collaborative Professionals and, if permitted, to all clients.

3.12 Prohibition Against Participating in a Proceeding—General Rule.

A. Except as provided in Standards 3.12.C and 3.13, a Collaborative Professional and any other professional working in the same firm or in association with the Collaborative Professional is prohibited from participating in or providing services with respect to any Proceeding that involves substantially the same participants.

Comment: Standard 3.12.A does not prohibit a Collaborative Professional from providing services that are not related to a Proceeding if allowed by Standard 4.4.

B. The prohibition in Standard 3.12.A may not be waived by the clients.

C. The application of the prohibition to a professional working in the same firm or in association with the Collaborative Professional does not apply if the Participation Agreement expressly exempts a professional who (1) is a member of an organization or firm providing services to the client without fee, or a government agency, and (2) has been isolated from any participation in the Collaborative Process.

3.13 Sole Exception to Prohibition Against Participating in a Proceeding. With the consent of all clients, a Collaborative Professional may initiate and take action in a Proceeding if necessary to implement or make legally enforceable agreements reached in the Collaborative Process, including participating in procedures that are appropriate to preserve the ability of a court or other authority to approve such agreements. This does not prohibit a Collaborative Lawyer from initiating a Proceeding prior to commencement of the Collaborative Process.

Comment: This exception does not modify the general rule in Standard 3.12.A and B that the clients may not consent to having a third party decide any contested issue without first terminating the Collaborative Process. Examples of permissible acts include initiating a Proceeding to approve a Resolution, or requesting a stay or continuance of a Proceeding to preserve jurisdiction to approve an agreement reached in the Collaborative Process.

IV. CONCLUSION OF THE COLLABORATIVE PROCESS

4.1 Conclusion. The Collaborative Process ends upon its Conclusion as defined in Standard 1.0.C.

4.2 Terminating Events. The occurrence of any of the following events Terminates the Collaborative Process:

A. A client or professional gives notice of Termination.

B. A client or a client’s lawyer participates in a Proceeding unless specifically allowed by Standard 3.13.

C. A Collaborative Professional resigns or is discharged and none of the exceptions of Standard 3.9 apply.

4.3 Notice Requirement in Case of Termination. If a Collaborative Professional

14

learns of a Terminating event under Standard 4.2, the professional will notify the other Collaborative Professionals.

4.4 Professional Services after Resolution of Process.

A. Child Specialists and Coaches. Child Specialists or Coaches may provide services following the Resolution of a Collaborative matter, so long as the services remain consistent with their role in the Collaborative matter. A Child Specialist or neutral Coach must have the consent of all clients before providing services after Resolution. A Coach or Child Specialist may not serve as an individual or joint therapist to the client(s) or to a client’s dependent after Resolution.

B. Financial Specialists. With the consent of all clients, a Financial Specialist may provide services following the Resolution of a Collaborative matter, so long as the services do not violate Standard 3.6 and remain consistent with the Financial Specialist’s role in the Collaborative matter.

Comment: An example includes assisting clients in completing the tasks specifically assigned to the Financial Specialist by the clients’ Resolution.

C. Collaborative Lawyers. A Collaborative Lawyer may provide services for a client following the Resolution of a Collaborative matter, so long as the services do not violate Standard 3.12.

Comment: A Collaborative matter may resume after a Resolution. Standard 4.4 requires that all Professionals maintain roles that are consistent with their roles in the Collaborative matter following Resolution. Standard 3.12 prohibits a Collaborative Professional from participating in a Proceeding after Resolution, including enforcement of an agreement reached between clients in the Collaborative Process. The restrictions of Standard 3.12 do not apply when subsequent services for a client in a Proceeding involve no other participants from the Collaborative matter.

4.5 Professional Work after Termination of Process.

A. After Termination, a Collaborative Professional will not provide any service for the client(s) that is either (a) adverse to any other client in the terminated Collaborative matter, or (b) related to the Collaborative matter.

B. After Termination, a Collaborative Professional may provide the professional’s client(s) with referrals.

C. After Termination, a Collaborative Professional may consult with a client about reinstating or resuming the Collaborative Process, and other dispute resolution process options that may be available.

Comment: See also Standard 3.12. This Standard does not prohibit changing the way in which negotiations are conducted within the Collaborative Process prior to Termination. This Standard prohibits assisting clients in any negotiation or Proceeding following Termination.

15

The IACP Standards for Trainers, Trainings, and Practitioners are drafted with an awareness of the aggregate nature of learning. Knowledge comes from the interface between education and practical experience. Skill is acquired from the successive application of education to experience. With those principles in mind, these Standards should be understood as a point of departure in a continuing journey of education and practice for Collaborative practitioners and trainers.

The IACP sets the following basic requirements for a professional to hold herself/himself out as a practitioner who satisfies IACP Standards for Collaborative Practice in family related disputes.

1. General Requirements:

1.1 The Collaborative practitioner is a member in good standing of:

IACP; and a local Collaborative Practice group.

1.2 The Collaborative practitioner accepts the IACP Mission Statement.

1.3 The Collaborative practitioner diligently strives to practice in a manner consistent with the IACP Ethical Standards for Collaborative practitioners.

1.4 The trainings referred to in 2.2, 3.3 and 4.3 must be trainings that meet the IACP Minimum Standards for trainings delivered by trainers who meet the IACP Minimum Standards for Collaborative Trainers.

2. IACP Minimum Standards for Collaborative Lawyer Practitioners:

2.1 Membership in good standing in the administrative body regulating and governing lawyers in the lawyer’s own jurisdiction.

2.2 Completion of an Introductory Collaborative Practice Training or an Introductory Interdisciplinary Collaborative Practice Training that meets the requirements of IACP Minimum Standards for Introductory Collaborative Practice Trainings and Introductory Interdisciplinary Collaborative Practice Trainings. For practitioners who commenced Collaborative Practice prior to January 1, 2015, completion of training that met the requirements of the IACP Minimum Standards for a Collaborative Basic Training then in effect.

2.3 At least one thirty hour training in client centered, facilitative conflict resolution, of the kind typically taught in mediation training (interest-based, narrative or transformative mediation programs).

2.4 In addition to the above, an accumulation or aggregate of fifteen further hours of training in any of the following areas:

Interest-based negotiation training

Communication skills training Collaborative training beyond minimum fourteen hours of Initial Collaborative training

Advanced mediation training Basic professional coach training

IACP Minimum Standards for Collaborative Practitioners3

3Minimum Standards for Collaborative Practitioners were initially adopted July, 2004 and revised in October 2014

16

3. IACP Minimum Standards for Collaborative Mental Health Practitioners:3.1 Mental Health professional license in good standing in one of the following:

• LCSW [ Licensed Clinical Social Worker] • R Psych [Registered Psychologist]

• RSW [ Registered Social Worker] • C Psych [Chartered Psychologist]

• LMFT [Licensed Marriage and Family Therapist] • Licensed Psychologist• RCC [ Registered Clinical Counsellor] • LEP [ Licensed Educational Psychologist]

• CCC [ Canadian Clinical Counsellor] • LPC [Licensed Professional Counsellor]

or such other equivalent license in a state, province or country that requires an advanced degree in a recognized clinical mental health field, requires continuing education, and is regulated by a governing body under a code of ethics.

3.2 Background, education and experience in:

• Family systems theory • Individual and family life cycle and development• Assessment of individual and family strengths • Assessment and challenges of family dynamics in separation and divorce• Challenges of restructuring families after separation • For child specialists: expertise in child development, clinical experience with

a specialty focus on children and an in-depth understanding of children’s unique issues in divorce



3.5 In addition to the above, an accumulation or aggregate of fifteen hours of training in any or all of the following areas:

• Basic professional coach training• Communication skills training• Advanced mediation training

• Collaborative training beyond minimum fourteen hours of initial Collaborative training

3.6 A minimum of three hours aimed at giving the mental health professional a basic understanding of family law in his/her own jurisdiction.

4. IACP Minimum Standards for Collaborative Financial Practitioners:

4.1 Professional license or designation in good standing in one of the following:

• CFP [Certified Financial Planner] • CMA [ Certified Management Accountant]

• CPA [ Certified Public Accountant] • CGA [Certified General Accountant]

• CA [Chartered Accountant] • ChFC [ Chartered Financial Consultant]

17

or such other equivalent license or designation in a state, province or country that requires a broad-based financial background and continuing education, and that is regulated by a governing body under a code of ethics.

4.2 Background, education and experience in:

• Financial aspects of divorce• Cash management and spending plans• Retirement and pension plans• Income tax• Investments• Real estate• Insurance• Property division• Individual and family financial planning concepts


4.4 In addition to the above, an accumulation or aggregate of twenty hours of education in the financial fundamentals of divorce giving the financial professional a basic understanding of family law in his/her own jurisdiction, including:

• Divorce procedures• Property - valuation and division• Pensions and retirement plans• Budgeting - income and expenses• Child and spousal support• Future income projections• Financial implications of different scenarios for settlement


4.6 In addition to the above, an accumulation or aggregate of fifteen hours of training in any or all of the following areas:

• Communication skills training• Collaborative training beyond minimum fourteen hours of initial

Collaborative training• Advanced mediation training• Basic professional coach training

18

IACP Minimum Standards for Introductory Collaborative Practice Trainings and Introductory Interdisciplinary Collaborative Practice Trainings4

1. Introduction. These standards are established with an awareness of the aggregate nature of learning. Skill is acquired from actual application of education to experience over time and continuing education to enhance skill.

A trainer must be familiar with the following definitions, principles and standards adopted by the International Academy of Collaborative Professionals (IACP):

Definition of Collaborative Practice Ethical Standards for Collaborative Practitioners Minimum Standards for Collaborative Practitioners Minimum Standards for an Introductory Collaborative Practice Training Minimum Standards for Collaborative Practice Trainers

A training in the Collaborative Practice process satisfies the Minimum Standards for an Introductory Collaborative Practice Training or an Introductory Interdisciplinary Collaborative Practice Training when it complies with the requirements prescribed herein. This training will introduce the Collaborative Practice process while recognizing that proficiency or skill cannot be attained from this training alone.

Trainers will familiarize participants with the theories, practices and skills so participants can begin to develop the self-awareness and understand the core requirements for effective Collaborative Practice.

2. Core Curriculum. Trainers will provide instruction to the participants on the following subjects:

(a) Process. The training will include the following subjects concerning process:

(1) The Collaborative Practice process as a structure to create working relationships to reach agreements and resolve disputes;

(2) The range of process options and Collaborative Practice professional team configurations available to clients given their situation;

(3) Organizational considerations in managing a Collaborative Practice matter, including—

(i) providing a structure, options, and protocols for the process;

4The Minimum Standards for Introductory Collaborative Practice Trainings and Introductory Interdisciplinary Collaborative Practice Training were approved October 2014. In 2017, the Board removed the designation of these standards as “interim”.

19

(ii) managing the case within the structure established by the professionals; (iii) setting expectations for clients and professionals; (iv) defining issues and determining tasks; and (v) planning, conferring and coordinating among professionals including pre-

meeting and post-meeting briefings with the professionals and clients.

(4) Considerations when working as a team, including as an interdisciplinary team, and the contribution and role of each professional;

(5) Recognition of the emotional, financial, and legal elements of the clients’ conflict in all cases and how each element might

impact the process; and

(6) The applicability of local law to the process.

(b) Skills Required for the Collaborative Practice Professional. The training will include the following subjects concerning skills:

(1) The professional’s responsibility to maintain a safe and productive environment for all;

(2) The professional’s responsibility to educate clients how to engage in productive behavior;

(3) The impact of professional language and modeling behavior to improve the clients’ ability to effectively participate in the Collaborative Practice process;

(4) The professional’s duty to assist the client in developing effective communication skills to enhance the prospects for reaching agreements during the Collaborative Practice process and in the future;

(5) The professional’s ability to effectively assess the capacity of the client for effective participation in the Collaborative Practice process;

(6) The professional’s awareness of power dynamics and imbalances that may exist in the Collaborative Practice process, the impact on the process, and how the professionals can address such issues; and

(7) The professional’s awareness of the need for assessment of coercive and violent relationships.

(c) Theory and Ethics. The training will include the following subjects con cerning theory and ethics:

(1) Dynamics of interpersonal conflict. For trainings focused on domestic relations matters, divorce as a life transition and the dynamics of divorce,

20

and for other family matters the impact of transitions on interpersonal dynamics and relationships;

(2) The future-focused decision-making orientation of Collaborative Practice. For trainings focused on domestic relations matters, concepts related to restructuring families;

(3) The difference between facilitative negotiation, including interest-based theory and methods as contrasted with positional negotiation, including rights-based theory and methods;

(4) Ethical considerations including the need to discuss carefully the available process options with the client, informed consent, integrity, professionalism, diligence, competence, advocacy, and confidentiality;

(5) Recognition that each professional has different ethical considerations;

(6) The role of the law as one of multiple reference points for decision- making. Other reference points include the interests and needs of each client, each client’s sense of fairness, practical and economic realities, prior agreements, the goals of the clients, and cultural, emotional, and other factors; and

(7) IACP standards that are applicable to practitioners, including Minimum Standards for Collaborative Practitioners and Ethical Standards for Collaborative Practitioners.

(d) Process Value and Costs. The training will include the following subjects concerning process value and costs:

(1) Understanding the broader interests which can be addressed in Collaborative Practice, including the long-term benefits of client self- determination, reaching a durable agreement, preserving relationships, and the comparative economic and relational consequences of process choices;

(2) Conveying to clients the value of Collaborative Practice including, where applicable, the value of an interdisciplinary professional team, as distinct from and together with consideration of professional fees and financial cost variables of process choices;

(3) Making realistic statements to clients about financial realities of dispute resolution processes, and the clients’ contributions to cost containment throughout the process; and

(4) Awareness that individual professional choices and behavior can have a significant impact on the efficiency, value, and cost of the process.

21

(e) Professional Teamwork. As used herein, a “team” can be any configuration of professionals, whether lawyers-only or interdisciplinary. The training will include the following subjects concerning professional teamwork:

(1) Professional team development, formation, configuration, and dynamics and the responsibility of each professional to establish and maintain a collaborative environment;

(2) The professional and interpersonal differences between working as an independent professional and working as part of a Collaborative Practice team, including a team with members from different disciplines;

(3) The nature of the roles and work performed by each professional discipline in an interdisciplinary Collaborative Practice matter, and how to maximize the knowledge and skills of each team member, both individually and together, in order to effectively work on a matter; and

(4) For professional team members from different disciplines, the specific boundaries and ethics common to each profession, and the unique considerations these pose when working together as a team.

(f) Practice Development and Practice Groups. The training will include the following subjects concerning practice development and practice groups:

(1) Initiation of Collaborative Practice matters in the professional’s unique communities, and the responsibility for each professional to develop his/ her own practice;

(2) The benefits, structure and role of practice groups, and the individual responsibility for involvement in practice group activities;

(3) The importance of developing and expanding Collaborative Practice skills through additional trainings, experience, and interactions with experienced practitioners, and how an Introductory Collaborative Practice Training serves solely as a foundation; and

(4) The role of IACP as the international organization that promulgates standards and advances Collaborative Practice, and the

resources IACP makes available to support practitioners.

3. Introductory Interdisciplinary Collaborative Practice Training.

(a) An Introductory Interdisciplinary Collaborative Practice Training shall meet all requirements of an Introductory Collaborative Practice Training plus the requirements of this Section 3. The core curriculum for an Introductory

22

Interdisciplinary Collaborative Practice Training is the same as the core curriculum for an Introductory Collaborative Practice Training.

(b) In an Introductory Interdisciplinary Collaborative Practice Training in the area of domestic relations, the faculty will be composed of a minimum

of 1 professional from each of the legal, mental health, and financial disciplines. Otherwise, the faculty will be composed of those interdisciplinary professionals appropriate to the subject matter.

(c) An Introductory Interdisciplinary Collaborative Practice Training should include instruction of participants from each discipline by members of each of the other disciplines.

4. Training Organization and Procedures

(a) Duration. An Introductory Collaborative Practice Training will be a minimum of 14 hours of classroom time (excluding break times) completed over no more than 90 days, and preferably over 2 or 3 consecutive days. Participants will attend in person.

(b) Methods. An Introductory Collaborative Practice Training should include multiple learning modalities – interactive, experiential, and lecture elements. Examples include demonstrations, role plays, small group exercises, interactive dialogues, fish bowls, and educational games.

(c) Materials. An Introductory Collaborative Practice Training should include written materials that are useful for reference and practice by the Collaborative Practice practitioner after the training and will include the IACP Minimum Standards for Collaborative Practitioners and IACP Ethical Standards for Collaborative Practitioners.

(d) Evaluations. An Introductory Collaborative Practice Training should include evaluations of the training and trainer(s) by the participants.

23

IACP Minimum Standards for Collaborative Practice Trainers5

These standards are established with an awareness of the aggregate nature of learning. Skill is acquired from the successive application of education to experience over time and continuing education to enhance skill. The IACP sets the following minimum standards for trainers after January 1, 2015, to conduct a training that meets IACP Minimum Standards for an Introductory Training:

1. Minimum Experience for Trainers:

1.1 A trainer will have completed at least 10 different Collaborative Practice matters of which at least 6 will have been in the interdisciplinary model, accumulating at least 50 hours of practice in Collaborative Practice. For trainings that are focused solely on practice areas other than domestic relations, trainers will have completed at least 8 different Collaborative Practice matters, accumulating at least 50 hours of practice in the Collaborative Practice.

1.2 During the 5 years prior to first conducting trainings, a trainer will have taken primary responsibility for preparing and making educational presentations that total at least 15 hours in presentation time, with 1 presentation lasting no less than 3 hours and each other presentation lasting no less than 45 minutes.

1.3 Prior to conducting trainings, a trainer will have attended a minimum of two Introductory Collaborative Practice trainings. At least one such training will be introductory training in the interdisciplinary model to provide the trainer the experience of observing the principles, methodology and practice of teaching.

2. Minimum Training for Trainers:

2.1 A trainer will have satisfied all training requirements set forth in the Minimum Standards for Collaborative Practitioners.

2.2 A trainer will have completed at least 10 hours of client-centered facilitative conflict resolution training beyond those set forth in the Minimum Standards for Collaborative Practitioners. If a trainer is conducting trainings in the domestic relations area, such training completed will include a substantial amount pertinent to domestic relations dispute resolution.

2.3 A trainer will have a minimum of 9 additional hours of relevant education on advanced Collaborative Practice topics.

5The Minimum Standards for Collaborative Practice Trainers were approved by the Board in October 2014 and amended February, 2015. In 2017, the Board removed the designation of these standards as “interim”

24

3. Licensing/Certification: A trainer will be licensed or certified for his/her field of practice, and be in good standing and not restricted in practice or subject to any conditions or monitoring of his or her conduct by the licensing board governing the trainer’s field of practice. A trainer will have no public record of discipline of any nature within the last 5 years.

4. IACP Training Standards: A trainer will be familiar with the Minimum Standards for an Introductory Training and have the skills to conduct that training.

5. Skills Training: A trainer shall be qualified by education, training, and experience to inform and educate about skills relative to communication, problem-solving, facilitative dispute resolution, mediation, interpersonal relationships, conflict management and resolution, interest-based negotiation, teamwork, and process.

A trainer should attend educational courses or workshops that emphasize adult learning principles. A trainer should be able to teach adults through meaningful dialogue and didactic presentations, set up demonstrations, structure role plays, and employ other experiential learning models.

6. Knowledge about Area of Dispute: A trainer will have an appropriate understanding of the general area to which the dispute relates, including, a recognition that financial decisions may have far-reaching and long-term financial and tax implications and, when training in the domestic relations area, knowledge of the grief process, child development, and the dynamics of the divorcing/ restructuring family.

7. Particular Professions: In addition to the above, those offering training in particular disciplines as part of the Collaborative Practice process will satisfy the following:

7.1 Lawyer:

• A minimum of 5 years in active practice, including 5 years of experience in the particular discipline which is the subject of the training (e.g., 5 years of domestic relations experience for Collaborative Practice trainings dealing with divorce and separation).

7.2 Child Specialist:

• A minimum of 5 years clinical experience with specialty focus on children. • In-depth understanding of children’s unique issues in domestic relations.

7.3 Financial:

• A minimum of 5 years in financial consulting with significant experience in the financial and tax aspects of the general area to which the dispute relates.

25

7.4 Divorce Coach:

• A minimum of 5 years of clinical experience focusing on couples and families, and in-depth knowledge of: 1) short-term therapy and coaching models, 2) divorce and the psychosocial impact of divorce on families, and 3) basic elements and guidelines for creating parenting plans.

• In depth knowledge of family dynamics and systems theory and child development.

7.5 Other Professionals:

• A minimum of 5 years experience in their field.

8. Trainers in the Interdisciplinary Model of Collaborative Practice: The interdisciplinary model of Collaborative Practice for domestic relations matters includes the mental health, financial, and legal disciplines as part of the Collaborative team. In addition to the requirements above, each trainer in the interdisciplinary team model will have knowledge of team interactions and specific issues unique to the interdisciplinary model.

9. Checklist. To assist potential trainers in assessing whether they meet the requirements, the following checklist is provided as a convenience:

Summary of IACP Trainer Requirements

50 hours of Collaborative Practice work.

10 completed Collaborative matters, 6 of which are interdisciplinary. For trainings focused solely on non-domestic relations areas, 8 completed Collaborative matters.

15 hours of educational presentations in last 5 years of which one is at least 3 hours in duration, and the remainder at least 45 minutes each.

Attend at least 2 Introductory trainings, at least one of which is an Interdisciplinary Introductory Collaborative Practice training.

10 additional hours of facilitative dispute resolution training in addition to the 30 hours required for all Collaborative Practice professionals.

9 hours additional education on relevant advanced Collaborative Practice topics.

A trainer should attend educational courses or workshops that emphasize adult learning principles.

26

© 2018 All rights reserved International Academy of Collaborative Professionals

International Academy of Collaborative Professionals | Standards and Ethic s

1

Excerpts from The Collaborative Way to Divorce by Stuart G. Webb and Ronald D. Ousky (Penguin Group, NY, NY, Plume Printing, 2007)

Identifying Goals and Interests Page 102 All of the steps in the Collaborative process exist for one purpose: to help you achieve your most important legitimate goals. But you can’t achieve them if you haven’t first carefully considered what they are. There’s a natural tendency to become absorbed in the immediate problems that you are facing and to focus only on narrow ideas about how you might resolve these urgent concerns. Your success in the Collaborative process will depend a great deal on your ability to pause in the middle of the chaos to truly think about your long-term goals. In chapter 7 and Appendix E we will give you a better understanding of what we mean by goals and interests, and provide examples of some common goals to guide you. Keeping these crucial goals in mind will make it easier to make compromises or let go of less significant issues in order to preserve the things that matter the most to you. The other reason for you and your spouse to identify your over-all goals is that you’re likely to find that you share a number of them. Identifying these common interests will provide greater opportunities to find solutions for accomplishing these goals.

Chapter 7 Goals and Commitment: The First Steps to Success in the Collaborative Process

Pages 125 – 144 Success via the Collaborative process comes down to determining what you really want (establishing your goals), determining what you are willing to do to achieve these goals (deciding what to commit to), and then deciding how to go about achieving your goals (crafting a strategy).

Setting and Prioritizing Goals and Interests Do you know what you want—what you really want—out of this divorce? At this point you might be thinking, “I just want this divorce to be over,” “I just want custody of my children,” or “I just want to survive financially.” While these are all good starting points, we encourage you to delve more deeply. Because some of the daily details of your divorce (such as how a particular bill will get paid this month) can have a greater sense of urgency than others, it is easy to fall into a pattern of putting all of your energy there. Remembering that big-picture concerns, such as the stability of your children and your long-term financial security, are really your most important goals will help you focus your time and resources on the issues that will have the greatest impact on your life in the years ahead. Also, if you and your spouse each spend time identifying your big-picture goals at the outset, you will be likely to see that you share many common interests and concerns.

2

Identifying shared goals will play an important role in helping you achieve your best possible outcome.

Thinking About What You Truly Want Start by thinking about what truly matters to you, more than anything else, regardless of whether you think it relates to the divorce. You can then think about which of these broader goals or interests you want to achieve through the divorce process. It’s entirely possible that putting your marriage back together is one of your goals. This is understandable, even natural, particularly if you did not initiate the divorce. But for the purposes of figuring out what you want from your divorce, it’s essential to assume that the divorce is going to happen. Focus on goals that relate to how you will live your life afterward. What do you think will matter to you ten or twenty years from now? Thinking in these terms will help you separate your immediate, short-term goals (making sure your spouse pays the mortgage this month) from critical, long-term goals that seem too far in the future to wrap your head around (such as making sure your children continue to have a meaningful relationship with both parents). Robert H. Mnookin, director of the Harvard Negotiation Research Project, a key exponent of innovative problem-solving techniques, reminds us in his book, Beyond Winning (The Belknap Press of Harvard University Press, Cambridge, MA, 2000), that your lawyer’s goal is to focus on helping you understand your priorities and interests to enhance the problem-solving around the four-way table.

Knowing the Difference Between Interest and Positions

When we refer to interests, we’re talking about basic needs that are related to your core goals in life. By contrast, a position is simply a way of stating what you want, regardless of whether or not it addresses a need. Take a look at the difference between what John wants and the position he’s defending: John’s attorney: What is the main thing you want to achieve in your divorce? John: I want joint physical custody of my children. That’s what’s most important to me. John’s attorney: Why do you want joint physical custody? John: So that I can see my children at least half the time. John’s attorney: What if your wife agrees to a schedule that gives you exactly that, but won’t agree to all the arrangement “joint physical custody”? John: I guess that would be fine, as long as I get as much time as possible with my children. In the example above, John’s interest is having significant time with his children. Because he believed it was necessary to call it “joint custody,” he automatically stated that position rather than think about how he might still get what he wants (maintain his interest, time with his children) regardless of the label.

3

John’s situation is a common one, in which parents in the midst of a divorce often start by saying they want a particular type of custody (joint physical, sole physical, and so on) based on a limited understanding of what those labels actually mean. When asked why they feel so strongly about a particular label (position), parents generally identify their underlying interest (wanting a particular amount of time with the children, wanting a particular amount of support, wanting the children to remain in the state, and so on), which locks the other spouse into a position of pushing for a different custody label. As a result, emotions can flare and negotiations can stall unnecessarily. However, if the couple is allowed to explore their underlying interests without the verbiage of legal labels they rarely understand, there’s a much greater chance of both getting what they want. They can then come up with a label they can both live with. Differences between positions and interests also occur when parties are trying to reach agreements on financial issues. Consider the situation involving Sue and Bob: When Sue and Bob finally decided to end their twelve-year marriage, their main concern was the well-being of their two children, Daniel, age eight, and Emily, age three. During the marriage they’d both agreed that it would be better for the children if Sue stayed at home until Emily was in first grade. Now that they were getting divorced, it was unclear whether they were going to be able to afford for Sue to stay at home. Determined to make this a priority, Sue went over her expenses with her sister and found a way to reduce her household expenses to $4,000 per month. However, she concluded there simply was no way to reduce her expenses below that point, and she felt she simply needed Bob to understand that $4,000 per month was her “bottom line.” She discussed this position with her attorney. Sue’s attorney: Let’s talk about what you want in terms of support. Sue: I need $4,000 per month in family support. That’s my bottom line. Sue’s attorney: Why do you believe you need $4,000 per month? Sue: Because that would allow me to stay at home until Emily is in first grade. If Bob does not give me that amount, it will not be possible. We need to make that clear to him. Sue’s attorney: It sounds like your primary interest is in being able to stay home with Emily. Sue: That’s correct. Sue’s attorney: Bob’s attorney is saying that Bob does want you to be able to stay home with Emily, but he cannot pay $4,000 per month and still meet his living expenses. Sue: If Bob wants this to happen, he is simply going to have to find a way to pay the $4,000 per month. Sue’s attorney: What if he gave you $3,000 per month in family support and gave you an extra $24,000 from the mutual funds? You could draw an extra $1,000 per month from that account during the next two years until Emily is in school. Sue: I guess that could work, as long as it allows me to stay home during these next two years. This example, like the first one, is a much-simplified version of a very common scenario. Sue’s position was that she needed $4,000 per month. However, her goal or interest was

4

in being able to stay home with Emily. While Bob also had an interest in having Sue stay home with Emily for those two years, he could not agree with her position of needing $4,000 per month because that would mean he wouldn’t have been able to meet his living expenses. Once they shifted away from positions, it was easier for the couple and their attorneys to identify ways in which they could achieve their common interest. The interests versus positions dilemma is by no means limited to child custody and support-related issues. In looking at your financial situation, for example, you may have calculated a bottom-line dollar amount that you arrived at mathematically in a particular way (in this case, monthly payments). If your spouse uses the same approach and arrives at a different bottom line, you’ll be stuck in different positions, feeling as if one of you will have to lose in order for the other to win. Shifting the discussion to focus on your interests, rather than your positions, helps to cultivate a greater understanding of what’s important to each of you, and it increases the chances that both your needs will be met. Other common positions we often hear from our clients:

• I want permanent spousal support. • I want temporary spousal support. • I want all of the tax exemptions. • I want child support that equals the state guidelines. • I want to have the children 50 percent of the time. • I don’t want to pay more than 50 percent of my income. • I want my spouse to pay all of the debts. • I want to keep my retirement account. • I want my name off all of the debts.

So what makes these statements positions instead of interests?

• It’s not immediately clear why you want what you say you want. (What’s only clear is that you think you want it.)

• These statements do not necessarily relate to core needs or values. • It’s not clear that the client truly understands what some of the terms mean. • It is possible that the client could obtain something of equal value through another

method. • Each of these statements tends to create a win-lose scenario in that only one

person ends up with the thing that he or she identified. To put you in a goal-and-interest mind-set, we have provided many more examples of common goals and interests in Appendix E.

Prioritizing Your Goals

It’s pretty unlikely that you’ll be able to achieve every single one of your goals, so it’s essential to try for the ones most important to you first. Prioritizing will help you make decisions when it is time to make compromises in the process. The hope is that you both can compromise a less-important goal in order to achieve a more-important one, reaching resolution.

5

There are many ways that you can choose to prioritize your goals: • List your goals in order of importance. • Review your list and determine which interests can easily be eliminated. Then

make a second list of interests you could give up if you had to (knowing you’d rather have them).

• Continually update and refine your list by asking yourself the following questions:

o Are my goals realistic? o Is this goal/interest so important to me that I would be willing to make a

major sacrifice in order to be able to achieve it? o Is this a goal that can be achieved during the divorce process? o Would I regard this goal as legitimate if my spouse had the same goal? o Is this really an interest or is it a position? o Will this goal really matter to me ten years from now? Twenty years from

now? o Is this goal based partly on spite? o Is this goal consistent with my values? o Is this goal really as important as the other goals? o Would my spouse have to make an unreasonable sacrifice in order for me

to achieve this goal? By defining and prioritizing your goals and interests, you’ve taken a major step toward achieving a successful resolution of your divorce issues. Once you put your list together, keep a written copy in a place where you can refer to it regularly. Now let’s see how committed you are to making your goals a reality.

Making the Commitment Necessary to Achieving Success

As we’ve seen in working with our numerous clients, and as we’ve said throughout this book, the outcome of your case really does depend on you. The biggest indicator of success is the level of commitment that both you and your spouse are willing to make emotionally, financially, and in terms of time: Emotional commitment: Your willingness to endure discomfort or emotional hardship in order to achieve your goals. Time commitment: Your willingness to commit the time necessary to achieve your goals. Financial commitment: Your willingness to commit the financial resources necessary to achieve your goals. Let’s look at each of these commitments more closely. The Emotional Commitment The Collaborative process, with its emphasis on four-way meetings and direct communication, requires a significant emotional commitment from both you and your spouse. What we’re talking about is the discomfort you may feel at having to work directly with your spouse on issues of great importance to both of you during a very

6

difficult time. While direct communication sometimes presents emotional challenges, in most Collaborative cases it’s a necessary ingredient for success – especially when children are involved. Ultimately, you may need to tolerate a certain level of discomfort in order to achieve the best outcome. But if the situation becomes too uncomfortable, there are ways in which you can address your feelings of discomfort. You can, for example, take as many breaks as necessary during the four-way meetings. You an use these breaks either to collect yourself by going for a walk or phoning a friend, or you an use this time to talk to your attorney or coach about ways to make the meeting more comfortable for you. In some instances, you can choose to suspend the direct four-way meetings and conduct the meetings through smaller “sub-caucuses,” in which you meet with your attorney (or both attorneys) in one room, and the attorneys meet with your spouse in a separate room. While sub-caucusing generally is less effective than the full four-way meeting, you should discuss this option with your attorney if you are unable to make the four-way meetings work for you. It’s certainly a better alternative than giving up and going to court. Getting Help Divorce coaches can help you prepare for the emotional challenge of the four-way meetings. Some clients are reluctant to hire coaches, believing that working with a mental-health professional in this capacity is acknowledging some significant shortcoming. Be reassured: You do not have to suffer from any psychological or emotional abnormality to benefit from coaching, nor does the fact that you do benefit from coaching indicate a psychological problem! It may help to know that even the healthiest, best adjusted among us generally lack the skills to address the emotional upheavals of divorce effectively. Coaching provides an opportunity to bolster these emotional resources, and it provides you with a safe, reliable support system. The Time Commitment If you’re going to achieve your goals, you’re likely going to need to make a substantial investment of time. Sometimes you’ll spend that time doing something that needs to be done to further the divorce process, such as preparing for and attending meetings or gathering information. Other times, you’ll spend your time waiting or thinking, which can feel like everything from healing to frustrating. When we talk to our clients about the time commitment a divorce takes, many underestimate it. “How long could it take?” we often hear. But once the process is underway, most are surprised by how long the process can last. While a divorce utilizing the Collaborative process generally takes less time than a traditional divorce, you need to be prepared for the fact that the divorce may take longer than you want it to. In our experience, the average divorce using the traditional process takes between eight and fourteen months to complete, while the average Collaborative divorce takes between four and eight months. However, many divorces using either of these processes can go well beyond these parameters. The main difference is that, while a litigated divorce sometimes can take several years if things spiral out of control, a Collaborative divorce generally does not stretch out over a long period of time unless you and your spouse

7

choose to move more slowly. There are many clients who choose to move at a deliberate pace in a Collaborative process, or to put the divorce on hold while they are working on reconciliation or waiting for other events to occur. While slowing down your divorce is relatively easy, if both spouses agree, speeding up your divorce can be more difficult. Getting a divorce doesn’t eliminate any of your other responsibilities. Most people are already busy with their jobs, their family lives, and social and civic duties. Making room for a divorce is tougher than it sounds, even if it is a priority. Trying to rush through the divorce can lead you to make quick decisions without fully considering all of your options. Brad did not think his divorce from Stephanie would be very complicated. Although they had been married for fifteen years and had three small children, they had already worked out their custody and child-support issues before they met with the attorneys, and they knew they wanted to divide their property equally. The only issue they had not finalized, in Brad’s view, was alimony, but he didn’t anticipate any trouble because he had already agreed to pay alimony for three years so that Stephanie could continue to work part time until their youngest child was in school. Brad had moved out of the house two months before they started the divorce and was living with his brother in a suburb thirty miles from their home. He was eager to have a house of his own and to live closer to the children. Prior to the first four-way meeting he put $10,000 down on a house with the expectation that their negotiation would be done within sixty days so that he could close on the house and move in. Unfortunately, the alimony issue became more difficult than Brad had imagined. From the beginning, Brad had determined that the most he could pay in alimony was $1,500 per month. However, during their second meeting, he learned that Stephanie’s budget showed she needed at least $2,200 per month in addition to the $2,000 in child support that he had already agreed to pay. Brad could not see how Stephanie could need that much cash to meet her budget! Moreover, he couldn’t imagine that anyone seriously could expect him to pay that amount. Brad’s attorney had encouraged him to put together a detailed budget of his own and to carefully review Stephanie’s budget, as well as some prior bank records, so that everyone had all of the facts before them while they were reviewing this critical question. However, this was the busy season in Brad’s business and he wasn’t able to get these tasks complete before the first two meetings. In addition the attorneys had suggested that Brad work with a financial neutral to help work through these budget issues. But Brad didn’t want to incur the expense of hiring another expert, and he feared that bringing in another professional would lead to more delay and unnecessary expense. After making little progress on this issue after three meetings, Brad reluctantly agreed to take some more time to review the budgets and meet with the financial neutral and his attorney to help crunch the numbers. In the course of these meetings, he discovered that there was a way to restructure his payments in a way that he would save approximately $300 per month in taxes. At the fifth meeting, Brad and Stephanie finally reached an agreement on alimony and signed a full Marital Termination Agreement. Unfortunately, because of the financial uncertainty of the prior several months, Brad was forced to cancel his purchase agreement on the house and had to forfeit his earnest money.

8

In the end, the divorce took approximately ten months, much longer than Brad had anticipated. Looking back Brad realized that, had he done a better job managing his expectations about time and had set aside more time to work with his attorney and financial neutral earlier in the process, he would have saved himself thousands of dollars and much frustration. If you don’t set aside enough time, and instead try to shoehorn your divorce into an already busy life, you’ll be adding to your already-high stress levels and reducing your ability to function well at a time when you need to be as rested, thoughtful, and clear-headed as possible. So start thinking now about cancelling (at least for a while) some discretionary activities to leave room for the divorce. But don’t cut back on activities that help you sustain your morale or mental health. If going fishing or spending an evening hanging out with your best friend gives you the strength to do what you need to do, do it—and enjoy.

The Financial Commitment

Divorce often comes at a time of financial strain, and it’s natural for separating couples to be very anxious about how much the divorce will cost them. In fact, a lot of people start exploring the Collaborative option because they see it as a way to reduce expenses. But while it’s true that the Collaborative process generally is far less expensive than litigation, achieving the outcome you want still may cost more than you’d hope to pay in an ideal world. That’s why it’s important to prepare yourself for the financial cost of divorce as much as possible. Determining What a Divorce Should Cost or How Much You Should Be Prepared to

Spend If you’ve talked with people who have been through a divorce, you probably know that there’s no such thing as a “typical” cost. And if you ask, most attorneys will refuse to give you an estimate or will come back with one of the legal profession’s favorite phrases, “It depends.” As annoying as that may be to hear, in truth, the cost does depend on a number of different factors that are nearly impossible to predict with any degree of accuracy. That said, there are some ways to at least ballpark what the divorce will cost you. We’ll talk about several of them in the following pages and, as you’re doing your estimates, make sure to consider the total costs—that’s your attorneys’ legal fees plus filing fees, expert fees, and fees charged by other professionals on your team. Bob and Diane were hoping that using the Collaborative process would help them keep their costs down. However, they knew there would be some important issues to make decisions on. They had been married for twenty-eight years and had three children, Brian, who was now twenty and a sophomore in college; Dean, who had just turned

9

eighteen and would graduate from high school this year; and Mary, who was thirteen and just entering the eighth grade. Diane was an engineer who was earning approximately $120,000 per year and had provided the primary support for the family. Bob had suspended his medial technician career to stay home with the children for ten years and was now working part-time, earning $28,000 a year. Even though they were both committed to finding a solution, they were not sure how they were going to make the numbers add up, and their attorneys both advised them to prepare for the fact that it would take some work to find an acceptable solution. They had approximately $23,000 in a mutual-fund account that they decided to set aside to cover legal fees, expert expenses, and fees charged by other team members. They agreed that they would split anything left over and use the proceeds to reward themselves. The divorce took approximately seven months, but they were able to complete everything for approximately $17,000, mostly because they both learned to let go of minor issues that were holding them back. For example, Diane thought that Bob was getting most of the personal household goods and wanted to receive an extra $4,000 from their savings to offset the difference. Bob did not agree that he was getting more of the household goods and believed that Diane had received at least half of the value. Their attorneys informed them that they could get an appraisal of the household goods. However, neither one of them wanted to pay the estimated $3,000 that an appraiser would charge, plus the additional attorneys’ fees that they might incur in working to resolve the issue once the appraisal was finished. Diane eventually agreed that the difference was not worth incurring the extra expense and decided to let it go. In addition, Bob thought that he should get an extra $1,800 from the savings to offset the $1,800 that Diane had taken from the mutual fund to pay for a trip with her sister just before the separation. Diane disagreed, since she maintained that Bob had spent a similar amount from the savings account to make some home improvements eight months earlier. While Bob initially thought he should stick to this issue because of the “principle,” he ultimately realized that it just did not make sense to continue to dispute that amount. After they both let go of these final issues and settled the case, they divided up the remaining $6,000. Bob used his share to take a winter golf trip with some of his college friends. Diane used hers to purchase a new stereo system for her entertainment center. Once your attorney is familiar with the issues in your case, he or she can give you a general estimate about the types of fees and expenses that you might anticipate in your case. Ask your attorney to help make a more conservative high estimate so that you can be prepared to address almost any scenario.

10

The Advantages of a High Estimate

Because it’s so hard to predict the total cost of a divorce accurately, we suggest that you estimate a much higher amount than you think you’ll actually need. This has several advantages:

• Setting aside adequate funds will allow you to hire the professionals you need to get the best possible outcome for your situation.

• Underestimating costs could leave you without the ability to access the necessary funds when you need them the most.

• If you set aside more than you will need, you can afford a little reward for coming in under budget. You could take a vacation, buy a nice gift, or redecorate a room in your new house.

• Finishing the process under budget will also give you the intangible reward of ending the divorce on a high note.

Jolene and mark believed that they would not have much difficulty working out the issues in their divorce. They had been married sixteen years and had one child, Tom, who had just turned six. While their attorneys cautioned them to prepare for the fact that there could be some expense in determining the nonmarital interests in their house and stock because of a significant inheritance that Jolene had received during the marriage, Mark had been hoping that his legal fees would be less than $3,000. But when $3,000 came and went and the case still wasn’t settled, he became anxious and frustrated. He was so concerned about not racking up any more fees that he ultimately made some concessions just to get the divorce over with. Those concessions cost him at least $10,000 more than he would have spent to see the divorce through properly. In most Collaborative cases, the total costs for both attorneys, coaches, expert fees, filing fees, and so on will be less than what you’d spend to sell your house (around 6 to 8 percent in commissions, closing costs and so on). As a rule of thumb, setting aside 5 percent of the value of your house most likely will cover your Collaborative divorce costs.

Evaluating Legal Services

Because lawyers charge on an hourly basis, it’s tempting to try to assess whether you’re getting your money’s worth for each hour of the lawyer’s time. But that’s not a particularly effective way to determine what something should cost, especially in a divorce case, where it’s not always clear what you’re hiring your lawyer to do. Consider the following scenario: Over the course of nine months, Joan’s divorce lawyer spent fifty hours on her traditional divorce. At $200 per hour, Joan’s legal fees came to $10,000. The billable time charged by Joan’s lawyer involved the following tasks:

• Listened to Joan describe her circumstances and concerns • Advised her on the law • Helped Joan understand and evaluate her options • Received information from the other attorney

11

• Communicated with the other attorney through letters and phone calls • Drafted motion papers for court • Talked to potential witnesses • Drafted and revised documents • Gathered information • Reviewed and analyzed documents • Made written and oral arguments on Joan’s behalf to the other attorney • Made arguments on her behalf to the court • Conducted formal discovery • Drafted other formal papers for the court: motions, affidavits, and so on.

Looking back on her case, Joan tried to figure out whether everything the lawyer did on her behalf was worth $200 per hour. Some blocks of time—like the hour Joan and her lawyer waited around in the courtroom hallway—weren’t even worth $10 an hour! Some of the arguments the attorney made on her behalf probably were worth $400 an hour, since it felt great to have someone sticking up for her. But those same arguments ended up infuriating her husband and made it much more difficult to settle the case, so that time may have actually cost Joan more than it saved. The hour the attorney spent advising Joan about the settlement turned out to have been extremely valuable, because it generated a tax savings idea that will save Joan thousands of dollars over the coming years. She estimated that that hour may have been worth at least $1,000 dollars. As you can see, it’s very hard to determine the value of legal services in the traditional process, particularly when you break the services down by the hour. In Collaborative cases, sometimes it can be even more difficult. Since Collaborative lawyers don’t engage in arguments, you won’t be billed for time spent arguing with the other side. It may be just as well, since most arguments turn out to be counterproductive (and overly expensive) anyway. Odd as it may seem, the very best Collaborative legal work is practically invisible. Perhaps one of the most valuable things that your Collaborative lawyer will do for you is create an atmosphere in which settlement is possible. If this happens, and you end up with an agreement that allows you to parent your children effectively, for example, those atmosphere-creation skills are priceless. If your four-way meetings went smoothly and you reached a settlement easily, you may have barely noticed your lawyer doing much of anything.

How to Be an Effective Consumer of Legal (and Other Services)

Divorce, even under the best of circumstances, usually isn’t cheap. So we encourage you to think about what you’re purchasing, just as you would with any other major expenditure. As you go through each task that needs to be completed in your divorce, think about whether you really need professional help. In a lot of cases you’ll find that you can handle the job yourself. For example, you’ll need to gather certain information

12

about your income and assets. Most people can do some, if not all, of that information-gathering on their own. In other cases, you may have some of the necessary skills but could use some help from an expert. For example, you probably can put together a pretty good estimated budget yourself. But paying for an hour or two with a CPA or other professional could save you money in the long run by helping you better anticipate your needs. In still other areas, you’ll have to rely entirely on other people to get the job done. For example, assessing the value of a business or determining the tax implications of your settlement are tasks best left to the professionals. Part of being an effective consumer is honestly deciding what you can do on your own, what you need some assistance with, and what you need to turn over entirely to an expert. Think in terms of building a house. If you’ve got the skills and the time and inclination to use them, you can save yourself a lot of money by doing certain things yourself. But it’s up to you to figure out where to draw the line, how much your time is worth, and whether, in the interests of getting the job done and done right, you might want to let someone else handle certain things. The best house, as with the best divorce, is not always the cheapest one. And the house that’s best for you isn’t necessarily the same house that’s best for your neighbor. Now that you’ve identified your goals and determined your level of commitment to the Collaborative process, it’s time to start putting together strategies to help you achieve the best possible outcome for your situation.

13

APPENDIX E Pages 211 - 218

Examples of Common Goals and Interests in Divorce Cases

To further help you distinguish interests or goals from positions, and to help you think about your own goals, we have provided the following list of common goals or interests that clients have expressed in divorce cases.

GOALS AND INTERESTS RELATING TO CHILDREN

Because the presence of children (particularly minor children) has a significant impact on the goals and interests in the divorce, we have separated this section into two categories, depending on whether the goals relate to the needs of children. If you have children, it may be relatively easy to think about some general things that you want for your children. Here are some examples to consider. General goals relating to the general well-being of your children

• I want our children to be well-adjusted. • I want our children to be happy. • I want our children to feel good about themselves.

Goals relating to providing consistent parenting care

• I want my spouse and me to provide consistent care for our children. • I want my spouse and me to have consistent discipline, expectations,

consequences, curfews, chores, bedtimes, etc. • I want my spouse and me to have the same parenting rules in both houses. • I want my spouse and me to support each other in our parenting decisions.

Goals relating to parenting skills

• I want to develop better parenting skills. • I want my spouse to develop better parenting skills. • I want to have a better understanding of what children need when going through a

divorce. Goals relating to the allocation of parenting time

• I want our children to have meaningful contact with both parents. • I do not want to be away from the children for more than four days at a time.

Goals relating to decision making

• I want to participate in major decisions affecting the lives of our children. Goals relating to keeping the children free from conflict

• I want our children to be free from the conflict in the divorce. • I do not want our children to believe they have to report to one parent about the

other parent.

14

• I want to avoid having financial issues spill over to our parenting. • I do not want our children to feel that they have to do anything to reject either

parent. • I want our children to feel comfortable talking about whether they enjoyed their

time at both parents’ homes. Goals relating to the relationship the children will have with other adults

• I want our children to have appropriate relationships with new partners or stepparents.

• I want to make sure new adults are not introduced into the lives of the children until the children are ready.

Goals relating to flexibility in scheduling

• I want to have enough flexibility in the parenting schedule so that we can adjust the schedule to meet the needs of the children.

• I want to be able to move the residence of the minor children. Goals relating to stability

• I want the parenting schedule to provide stability for the children. • I want the parenting schedule to be predictable. • I want to make sure each parent honors the agreed-upon schedule. • I want the children to live near both parents. • I want the children to be able to stay in their current school district.

Goals relating to communication with the other parent

• I want to be able to communicate effectively with the other parent regarding changes in schedule, updates on health, school, activities, consistent parenting rules, etc.

• I want to develop better communication skills. • I want both parents to have access to information relating to school, medical

issues, etc. • I want to have regularly scheduled communication. • I want both parents to honor ground rules for respectful communication.

Goals relating to communication with the children

• I want both parents to be able to communicate regularly with each child by phone and e-mail.

• I want all communication around our children to be respectful. • I do not want our children to hear negative things about one parent from the other

parent. Goals relating to child care

• I want to minimize outside child care. • I want to maintain high-quality child care. • I want both parents to share in child-care decisions.

Goals relating to religion or spirituality

• I want our children to be raised in their current religion.

15

• I want our children to regularly attend religious services. • I want both parents involved in the religious activities of our children.

Goals relating to medical care/physical health

• I want our children to have a good diet. • I want our children to get adequate exercise. • I want both parents to have full access to good medical/dental care. • I want both parents to be able to attend medical appointments. • I want both parents to share care of our children when they are sick.

Goals relating to education

• I want our children to be able to continue with their current schooling. • I want both parents to participate in their school conferences/activities. • I want our children to attend _______________________ school. • I want our children to maintain their current grades. • I want our children to attend college. • I want both parents to support the same educational goals. • I want both parents to participate in our children’s homework.

Goals relating to activities, music lessons, sports, etc.

• I want our children to remain in their current activities. • I want both parents to agree on the future activities for our children and to support

those activities. Goals relating to vacations

• I want both parents to be able to take vacations with our children. Goals relating to cultural heritage

• I want to make sure our children are raised according to their cultural heritage. Goals relating to children’s general financial issues

• I want our children to maintain their pre-divorce lifestyle in both homes. • I want our children to be financially responsible. • I want to make sure we set aside money to provide for college. • I want to have an agreement about how we will pay for college for our children.

Goals relating to child-expense sharing

• I want both parents to share in the children’s expenses based on their incomes. • I want to find a way of sharing expenses that is easy to manage.

GOALS AND INTERESTS THAT DO NOT INVOLVE CHILDREN

Financial goals • I want to be able to maintain my current lifestyle. • I want to be able to own a home similar to the home we lived in during the

marriage.

16

• I want to maintain a lifestyle that is equal to the lifestyle that my spouse will live. • I want to be able to retire at age ____________. • I do not want to have to work outside the home until __________________. • I do not want to have to work full time until _____________________. • I do not want to have to work outside the home at any time in the future. • I want to be able to start a new career. • I want to be able to pursue a career that I enjoy. • I do not want to have to work overtime. • I want to have more free time. • I want to get out of debt. • I want to learn how to live within my means. • I want to learn how to manage money. • I want to know how to budget. • I want to understand investment. • I want to learn skills for staying out of debt. • I want my spouse to learn how to live within his/her means. • I want my spouse to learn to manage money. • I want to keep the costs o f the divorce down. • I want to be able to restore my credit. • I want to reduce our tax obligation. • I want a financial settlement that will last (is durable).

Vocational goals

• I want to become more educated • I want to learn a skill. • I want to be able to choose the work I do. • I want to be able to change careers at some point.

Personal/emotional goals

• I want to resolve the divorce issues with dignity. • I want to keep our divorce issues private. • I want to maintain a respectful relationship with my ex-spouse. • I want to be treated fairly. • I want to treat my spouse fairly. • I want to become more stable emotionally. • I want my spouse to become more stable emotionally. • I want to know that I have a safety valve (insurance). • I want to maintain a good relationship with my in-laws in the future. • I want to maintain a good relationship with our mutual friends. • I want to make up for the mistakes I have made. • I want to atone for the harm I have caused. • I want to be able to trust my ex-spouse more. • I want my ex-spouse to be more trusting of me. • I want to maintain sobriety (recover from addiction). • I want my spouse to maintain sobriety (recover from addiction). • I want to develop a better way to handle my anger/sadness/fear.

17

• I want my spouse to develop a better way to handle his/her anger/sadness/fear. • I want to save the marriage. • I want to know that we made our best effort to save the marriage. • I want him/her to know how much s/he hurt me. • I want him/her to apologize for what s/he has done. • I want to do the honorable thing. • I want to settle this matter in a way that is consistent with my religious or spiritual

values. • I want a religious annulment/Gett to void marriage. • I don’t want him/her to live with his new girlfriend/boyfriend. • I want to listen better. • I want to express myself better. • I want to be less sad (depressed). • I want to be less angry. • I want to be less frightened. • I want to be less compulsive. • I want to work on an addiction issue. • I want closure. • I want to be able to start healing. • I want to be generous. • I want my spouse to acknowledge that I have been generous.

Goals relating to the pace of the process

• I want to get done soon. • I want to slow down the process.

Vermont Bar Association Seminar Materials 2019 Annual Meeting … · 2019-09-23 · Collaborative...

Documents

Transcript of Vermont Bar Association Seminar Materials 2019 Annual Meeting … · 2019-09-23 · Collaborative...