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February 23, 2023

Include Allied Professionals in the Collaborative Process

Michael P. Sampson

Experts routinely help decision makers – clients, lawyers advising them, judges and arbitrators deciding their cases, and juries figuring out issues – understand complex issues. Blurry pictures come into sharp focus. Gaps in understanding get filled.

Likewise, to clients who choose the Collaborative Law Process to resolve their issues, Collaborative allied professionals ("Allied Professionals") provide quality information and helpful knowledge. They can keep the decision makers – the clients – engaged in and comfortable with the Collaborative Process and instill confidence in the clients' settlement decisions.

Allied Professionals Add Value

Allied Professionals are roses who sometimes go by other names, such as "affiliated professionals," "adjunct professionals," "experts," "specialists," or "collaborative consultants." But to collaborating clients and their Collaborative Practice teams, Allied Professionals by any other name can provide value that smells sweet.

The Collaborative team members whom the International Academy of Collaborative Professionals (IACP) includes in its definition of "Collaborative Practice" are not only the team's "mental health and financial professionals," but are also "other experts as needed."

The IACP guides Collaborative Professionals about including other professionals with special expertise to address client needs, interests, and goals:

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.

Collaborative Lawyers Don't Know Things, But Allied Professionals Might

Consistent with IACP's ethical standards, including Allied Professionals on the Collaborative team helps the core professional Collaborative team broaden and leverage its members' respective expertise and better serve clients' goals.

"Allied" means "joined or united in in a close relationship." Lawyers need not be "lone rangers." Instead, when Collaborative lawyers and clients ask Allied Professionals to unite with Collaborative teams, lawyers can function in a system. The focus of the team's united effort is getting necessary information, understanding it, and solving problems to achieve the clients' goals.

How Can Including Allied Professionals in the Collaborative Process Help Clients?

Clients get stuck on issues, but Allied Professionals can help them get unstuck. They can provide information the participants lack, but need, before they can settle their dispute. Or, as Collaborative professionals engaged in no positional fight – thus having no dog in the fight – Allied Professionals may credibly give clients their opinions, help them engage in and stick with the Collaborative Process, and reassure them about technical or complex decisions.

Ways Collaborative Allied Professional Can Serve

The list below isn't exhaustive, but it gives several examples of (i) Allied Professionals, (ii) Collaborative clients who might consider engaging them, and (iii) corresponding areas the Allied Professionals might explore as they lend their expertise in the Collaborative Process. As varied as clients' circumstances and needs may be, there are Allied Professionals who might serve them.

Type of Allied Professional: Collaborative Divorce Coaches

Example Collaborative Clients

  • Parent is stressed, distrustful, angry, and feeling unable to communicate without becoming defensive.

Areas of Service to Explore

  • Improving communications between the parents. Helping the coached parent manage stress and set goals. Giving insight to the children's needs.
  • Helping the spouse come to terms with the divorce, including budgeting, finding another home, gaining confidence.

Type of Allied Professional: Child Experts; Child Specialists; Education Lawyer

Example Collaborative Clients

  • Child caught in the middle, with conflicting loyalty binds to parents
  • Special needs child requiring physical assistance as the child dependent enters teenage and adult years.
  • Gifted athlete or musician.

Areas of Service to Explore

  • Informing the parents about the child’s best interests.
  • Finding safe, quality, affordable childcare for child with special needs.
  • Drafting a Special Needs Trust.
  • Developing an Individual Education Plan (IEP)
  • Educating the team about respite support options.

Type of Allied Professional: Parenting Coordinators

Example Collaborative Clients

  • High-conflict couple with children at different development stages and varying relationships with parents.

Areas of Service to Explore

  • Conducting parenting coordination to work on communication skills.

Type of Allied Professional: Mental health professionals; Social workers; Counselors; Therapists

Example Collaborative Clients

  • Parent in and out of sobriety.
  • Parent with bipolar disorder.
  • Spouse suffering from severe anxiety and depression.

Areas of Service to Explore

  • Providing therapy for addiction issues.
  • Offering tools for managing stress, anxiety, and depression.
  • Conducting a mental health evaluation of a client.

Type of Allied Professional: Domestic and child abuse experts

Example Collaborative Clients

  • One parent abusive towards the other parent or towards the children.

Areas of Service to Explore

  • Developing ground rules to safeguard the participants and process.
  • Providing therapy and protocols for nonabusive communication.

Type of Allied Professional: Financial advisors; Financial planners

Example Collaborative Clients

  • Spouse not sophisticated in finances must manage, invest, live on assets and income after the divorce.
  • Spouses in closely-held family business need a business plan for the business post-divorce.

Areas of Service to Explore

  • Advising a party about investment options, budgeting, and financial planning.

Type of Allied Professional: CPAs; Tax experts

Example Collaborative Clients

  • Impact of selling or transferring assets, such as foreign investment property.

Areas of Service to Explore

  • Analyzing and educating the team about tax consequences of settlement options.

Type of Allied Professional: Estate planning attorneys; Elder law attorneys

Example Collaborative Clients

  • Spouse with beginning Alzheimer's Disease, dementia, or deteriorating physical capacity.
  • Beneficiary of irrevocable trust needing access to trust income or principal.

Areas of Service to Explore

  • Developing a Life Care Plan.
  • Conducting a neurologic evaluation.
  • Educating and helping explore distributions from or termination or modification of a trust.
  • Helping with post-divorce estate planning.

Type of Allied Professional: Realtors

Example Collaborative Clients

  • One spouse wants to keep the home, one wants to sell it.

Areas of Service to Explore

  • Conducting a comparative market analysis.
  • Developing options on timing of a sale of the home.
  • Exploring alternative housing available and projecting realistic costs.

Type of Allied Professional: Appraisers; Valuation analysts

Example Collaborative Clients

  • One spouse is an owner in a closely-held medical practice before the marriage and grew the practice during the marriage.

Areas of Service to Explore

  • Calculating the range of marital value and personal goodwill value of a professional practice, when the business will be kept.

Type of Allied Professional: Retirement valuation experts/actuaries

Example Collaborative Clients

  • Pension started before marriage has grown during the marriage and needs to be divided.

Areas of Service to Explore

  • Valuing the marital part of retirement plan before entry of Qualified Domestic Relations Order.

Type of Allied Professional: Stock options expert

Example Collaborative Clients

  • Before and during the marriage, a tech executive earned stock options with differing grant and strike prices and vesting schedules.

Areas of Service to Explore

  • Determining a coverture fraction and marital part of vested and unvested stock options and working on options corresponding with future vesting, cash flow, and tax consequences.

Type of Allied Professional: Vocational experts

Example Collaborative Clients

  • Spouse graduated with college degree but has been a stay-at-home parent out of the work force for the last 10 years.

Areas of Service to Explore

  • Conducting a vocational evaluation and survey of jobs in a geographic area.

Type of Allied Professional: Insurance experts

Example Collaborative Clients

  • Monied spouse has health issues preventing access to affordable life insurance.

Areas of Service to Explore

  • Exploring insurance options for securing financial commitments.

Type of Allied Professional: Bankruptcy attorney

Example Collaborative Clients

  • Closely-held business and its divorcing owners have debts exceed assets.

Areas of Service to Explore

  • Exploring options for reorganization or liquidating the business.

Type of Allied Professional: Intellectual property expert

Example Collaborative Clients

  • Songwriter/performer/ publisher/artist has a catalogue of royalty-generating assets acquired before the marriage, during the marriage, and since separation.

Areas of Service to Explore

  • Providing an opinion about the valuation of intellectual property or art.

Type of Allied Professional: Immigration lawyers

Example Collaborative Clients

  • Party not yet a permanent resident in the US has concerns about how a divorce may affect efforts to immigrate.

Areas of Service to Explore

  • Evaluating risks, issues, and practical steps to achieve the client's immigration goals.

Type of Allied Professional: Religious experts

Example Collaborative Clients

  • One or both clients have strong religious rules or views to consider.

Areas of Service to Explore

  • Consulting muftis for guidance under Islamic law.
  • Obtaining a get (or get) under Jewish law.
  • Obtaining an annulment from the Catholic church.
  • Working with elders to obtain approval of divorce of Jehovah's Witness.

Three models of Collaborative Practice

How does a Collaborative Team include skilled Allied Professionals like those mentioned above? There are variations and creative permutations, but three models of Collaborative Practice have emerged:

  • Lawyer-only Model – two clients, two collaborative lawyers.
  • Team Model - two clients, two collaborative lawyers, two divorce coaches, one neutral child specialist who is typically a mental health professional, one neutral financial specialist.
  • Referral or Hybrid Model - two clients, two collaborative lawyers. The clients hire expert professionals when necessary. They may share one neutral or may each hire a different expert.

Allied Professionals may help clients and lawyers in the Team Model or Referral (Hybrid) Model. In either model, the Collaborative team determines which Allied Professionals to invite, their role as joint neutral experts or consulting-only experts, and how they will participate.

Joint Neutral Experts or Consulting-Only Experts?

Joint Neutral Experts

In family or civil Collaborative dispute resolution, parties may discuss with their Collaborative attorneys and, in a Team Model, with the neutral mental health professional(s) and neutral financial expert, the value of hiring other joint neutral experts. Allied Professionals who serve as joint neutrals save money adverse parties would spend on nonobjective experts hired to advocate positions.

Examples include business and real estate appraisers, accountants, coaches or mental health professionals, who can help the clients understand and work through complex issues. Neutral, joint experts "provide both parties neutral and unbiased information, research, opinions, or inferences on a subject relevant to the dispute." The participating clients typically sign separate engagement letters with the joint neutral Allied Professional specifying services, expectations about inclusion in the Collaborative Process, commitments to confidentiality, and billing arrangements.

Some states require collaborating family law parties to include in their Collaborative Participation Agreements provisions for jointly engaging professionals, experts, or advisors serving in a neutral capacity. Local Collaborative Practice Groups may have suggested templates for Collaborative Participation Agreements that include provisions about Allied Professionals.

Consulting-Only Allied Professionals

Consulting-only experts serve not as joint neutrals, but as one client's advisor. Still, consultants must respect the Collaborative Process and clients' commitments to avoid arguing, posturing, and taking inflexible positions. Examples of consulting-only Allied Professionals in the family law context are collaborative coaches, financial planners, investment advisors, insurance agents, and therapists.

Consulting-only Allied Professionals do not know of the dispute except for knowledge they acquire through the consultation with a client or in the Collaborative Process. Joint neutral Collaborative team members typically don't review the work product, opinions, or mental impressions of consulting-only Allied Professionals.

With the Collaborative team's permission, consulting-only Allied Professionals may attend team meetings. Instead, or in addition, they may meet with one client between meetings to help guide the client through the process, often with no assurance the client will be a paying client after the process ends.

Work by Consulting-Only Experts After the Collaborative Matter Concludes

Unlike disqualification restrictions to which joint experts agree, the team understands consulting-only experts may handle client work after the Collaborative Process ends. Still, they can't breach confidentiality of privileged Collaborative communications, nor can they testify in adverse proceedings between the Collaborative participants about the same subjects of the Collaborative matter.

But, before meeting with individual consultants, clients must advise each other and their Collaborative team of such meetings, identify the individual consultant, say what the purpose for the individual consultant is, and instruct the consultant to abide by the Collaborative Process.

An exception is clients may consult with mental health or health care professionals for their own therapy, diagnosis, or treatment without revealing such consultations to the other client or the Collaborative team.

Sometimes an attorney with specialized experience will serve as an expert in an area in which neither client's Collaborative attorney has enough expertise. Examples include immigration attorneys, bankruptcy attorneys, special needs trust attorneys, estate planning attorneys, and corporate attorneys. Such adjunct Collaborative attorneys are ordinarily bound by the disqualification provisions of the Collaborative Participation Agreement. These adjunct Collaborative attorneys may be joint neutral Allied Professionals or consulting-only Allied Professionals.

Confidentiality of the Collaborative Process and Communications.

The Collaborative Process is confidential. Collaborative Professionals and clients should understand how transparency in the Collaborative Process, confidentiality in the Collaborative Process, and privilege of "collaborative law communications" will apply to Allied Professionals.

The Uniform Collaborative Law Act defines and protects confidential collaborative law communications. Allied Professionals – whether joint neutral experts or consulting-only experts – must honor and protect these confidential communications. Whether joint neutrals or consulting-only, Allied Professionals must acknowledge in writing the confidentiality of the Collaborative Process and agree to be bound by confidentiality obligations in the Collaborative Participation Agreement.

Be Flexible: Consider Including Allied Professionals on Collaborative Teams

Including educated and experienced Allied Professionals in the Collaborative Process for clients expands, strengthens, and deepens our ability to serve them. When we flexibly tailor teams with varied professional skills to fit clients' needs, we help clients resolve issues in a more informed, powerful way.

    Michael P Sampson

    Collaborative Family Law Attorney

    Florida Collaborative family law attorney Michael P Sampson accepts Collaborative matters only. His clients resolve their family law issues out-of-court and respectfully. For each client, Michael works with fellow Collaborative lawyers, neutral mental health professionals, financial neutral professionals, and allied professionals. Michael is a member of the American Bar Association Dispute Resolution Section – Collaborative Law Subcommittee, International Academy of Collaborative Professionals (IACP)Florida Academy of Collaborative Professionals (FACP), and the Collaborative Family Law Group of Central Florida.

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