Hi, Sherri.
Regarding arbitration clause: our original SF group has had until very
recently an optional clause allowing parties to designate a private judge
pro tempore (Calif. law allows such appointments, with all the same powers
as a family law judge--and it can be a fellow collaborative lawyer) in the
PA. I and several of my colleagues made it a practice always to fill in a
name of a practice group colleague in the blank for optional judge pro
tempore, during a conversation at the first fourway meeting, if the clients
thought it a good idea. (The chosen person would never even know that their
name had been written into the PA--only if needed would the person ever be
contacted.) In fifteen years of practice with that clause, I only actually
used it in one case---my very first one, which was a high conflict/danger to
children situation. It was very valuable there. The clause in the PA had
plenty of safeguards: everyone had to agree on who the private judge would
be and also had to agree on the precise issue to be decided by the pj, and
had to agree that the issue was of a nature that submitting it to a pj would
not involve evidence of a kind that would tend to make subsequent
collaborative negotiations difficult or impossible.
Since then, only one client did not want a name filled in the pj blank on
the PA and that --not by coincidence, in my view---was my first real failed
case, a client who had very strong control needs inconsistent with
collaborative negotiations. The parties went to court and had a nasty
divorce. I think the provision would probably have saved them from that
experience.
The experience made me superstitious, and thereafter I always liked to put
a name in, as a talisman. It worked. We never needed to use the private
judge in any of my cases.
Having said that, our group has now eliminated that optional clause from our
PA's--because we concluded that if people could agree on all that the clause
required, they could also very likely solve their own problems with a little
more or different help. So, instead, we have provision for a
"meta-mediator" if cases get into difficulties. The person is not named up
front but the role is described in the PA along with the other CP
professional team members that may be involved if all agree. Of course we
all could still agree on an arbitrator if we wished, as Stu suggests.
Regarding child specialist, I think the role definition and preservation of
the child specialist solely as an advocate and voice for the children is
extremely important---far more important than the risk that a custody
evaluator might later be needed. Our experience is that an effective
interdisciplinary team of coaches plus child specialist nearly always
reaches a consensual parenting plan, and that litigated custody proceedings
are extremely rare. In fact, not one of my cases with child specialist
participation has failed to reach a parenting plan that both parents felt
positive about. The child specialist role (like the coaches' role)
continues, of course, after entry of judgment, to help parents tweak and
adjust the plan in light of experience and the rapid changes that continue
to happen to the adults as well as the children after entry of judgment--and
the ability of the child specialist to serve this function effectively is in
my mind linked with the knowledge on the part of the parents that this
person is never going to appear in court proceedings and that no part of the
work with the child specialist can ever be used against either of the
parents. Given the rarity of custody litigation in collaborative cases, and
the value of insulating the child specialist from the start from involvement
in litigation, I'd say that the concern being expressed is a case of the
tail potentially wagging the dog. If parents end up in custody litigation,
the need for a new person to do an evaluation is the least of the kids'
worries. And, as you note, the work of the child specialist is quite unlike
what an evaluator would do.
Pauline
On 6/8/06, Sherri Goren Slovin <sgslovin@xxxxxxxxxxxx> wrote:
Our colleagues in Australia are creating a wonderful resource for
Australian professionals interested in practicing collaboratively.
Draft guidelines for collaborative practice in Australia have been
prepared in response to terms of reference from the Attorney General to
the Family Law Council of Australia.
There are a few issues on which the resources and thoughtfulness of this
list would be very helpful. If you can respond (I prefer on list as I
think it could be helpful to others) to the following, it would be most
appreciated. I will make sure your responses are forwarded to our
Australian counterparts.
1. Arbitration Provision- If your Participation Agreement includes a
provision that allows the participants to take issues out to arbitrate
or send to a neutral evaluator for a decision, what has been your
experience? This type of provision concerns me, but it is not within my
experience and I would like to be able to report back re the pros and
cons. In your responses, please include the following:
A- The terms of the provision I your PA
B. Your experience with the provision
C. Your thoughts on having it in the PA
2. Child Specialist Concern- Some members of the Australian committee
have raised concerns that child specialist disqualification provision
will mean a child who has been interviewed by an expert for the
collaborative law process will then have to
be interviewed by another expert if the matter goes to trial and child's
best interests should not be overridden by a contract between their
parents. Also posed: Are you aware of any exceptions to the general
rule about new experts being
hired should the matter go to court, especially in children's matters?
My own experience is that the child specialist does not "interview" a
child in the same manner as a forensic expert. The value and safety of
the work, both for the child and the specialist would be significantly
compromised with exceptions.
The wisdom of the List is solicited! And.. if you have the opportunity
to meet some of our new Australian colleagues in San Diego, please give
them a warm welcome!
Best Regards,
Sherri
Sherri Goren Slovin
30 Garfield Place, Suite 920
Cincinnati, OH 45201
513-241-9844
www.slovinlaw.com
OSBA Certified Family Relations Law Specialist
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