Sherri,
Some thoughts:
1. My experience as a CP coach on teams with an arbitration clause in the CP
agreement in our local cases (Colorado Springs) has been mixed. The language
of the provisions I have seen usually include:
* a mutually selected neutral third party decision maker (arbitrator);
* waiver of appeal of the arbitrator¹s decision;
* arbitrator may not be dismissed, disqualified, or challenged for cause
without the consent of both parties.
Although I have been on several cases where this provision was in the
protocol, it was only used once for deciding the amount and length of
spousal maintenance. In retrospect, I wish we had worked harder as a team
rather then allow for the arbitration, although several factors were
complicating the case (questions of international jurisdiction, etc.)
Though it often seems comforting to know that a truly difficult impasse can
be resolved with the use of a third party decision maker, and that it is
ultimately the decision of the parties, I lean towards the sentiment that
the use of a third party decision maker NOT be part of the CP protocol. If
the parties want to resolve some issue outside of the CP process, then they
may leave the process and do so.
Having the provision for the use of a third party decision maker just allows
the team members to have a mindset that somewhere lurks in the background
saying, "if we get REALLY stuck, we can always send it to arbitration" and I
for one don¹t like that I have that professional "opt-out" so I can then say
we had full success because everything is resolved in the process.
2. Child specialist:
I agree that the "educating" that the child specialist does with children in
the CP process is significantly different then the forensic interview that
is common to the traditional ³custody evaluation². In addition, though one
purpose is to educate the children about the process, another purpose for
the child specialist role is to gather information from the children about
their response to the process and then provide those insights back to the
team and parents for them (the parents) to develop their parenting plan. As
in traditional litigation, the ethical responsibility for deciding parenting
time plans is the parents (and or the court¹s) and not for the children.
Unlike litigation, the input of the children can have considerable influence
to the CP parenting time development process BUT such input is not THE
deciding factor and ultimately the child specialist is employed by the
parents, not the children. The newly hired experts in litigation are
"different experts" with different ethical and procedural responsibilities.
Jim Musante,
CP coach and trainer
Sherri Goren Slovin6/8/06 7:12 AM
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
