Collaborative Law in the US - How has it evolved?

You can find Alisa at these links:
www.transitionslegal.com
https://www.facebook.com/TransitionsLegal
https://www.linkedin.com/in/alisa-peskin-shepherd-79712bb/
https://www.instagram.com/transitionslegal/
https://twitter.com/apsfamilylaw

Transcript

(The transcript has been created by an AI, apologies for any mistakes)

Tamsin Caine 0:06
Hello and welcome to the Smart Divorce podcast. This podcast is for you if you're thinking of separating already separated or going through divorce. My name is Tamsin Caine and I'm a Chartered Financial Planner will speak to some fantastic specialists who can help you to get through your divorce hopefully amicably and start your new chapter positively. Now over to today's guest. I'm delighted to be joined today by Alisa Peskin-Shepherd she is from the US and is heavily involved in the collaborative process. We talk about how the process has evolved in the US and how clients who are suitable for going through the collaborative process can really benefit from a team approach of two attorneys, to mental health professionals. And I find that your professional. So if you're interested in going through the collaborative process and using that for your divorce, I think you'll find this really interesting. As if you are a family lawyer involved in the collaborative process, you may well be interested in listening to how things have moved on in the US and what's happening over there now. I really hope you enjoy. I'll hand over to Alisa. Hi, Alisa, how are you today?

Alisa Peskin-Shepherd 1:33
I'm great. Thank you so much for having me on your show today.

Tamsin Caine 1:36
That's an absolute pleasure. I always think it's really interesting to see how things work in, in other countries, and particularly with the collaborative processing seems to have developed more in the US. So I look forward to talking to you a bit more about that.

Alisa Peskin-Shepherd 1:55
Yes. I love how small our world has become that we're able to do this across across the seas.

Tamsin Caine 2:05
Yeah, absolutely. It's, it's really lovely. You're my second American interview on my podcast. And it's really lovely to to get to talk to people across the world. So yeah, it's fantastic. Do you want to start by introducing yourself and a bit about the work that you do as a collaborative lawyer,

Alisa Peskin-Shepherd 2:26
of course. So I am a collaborative attorney in Bloomfield Hills, Michigan, that's in Southeast Michigan and the closest city that your listeners might be familiar with is Detroit. I live in a suburb of Detroit. I became a collaborative attorney, really, because of the movement that is really treats divorce as a more humane process. I also am a mediator and a litigator. I still do take cases to court. But my passion really lies with the collaborative process. And my goal these days is really to educate more people about the collaborative process.

Tamsin Caine 3:21
Fantastic. Do you find you're doing less litigation as you become more ensconced in collaborative and mediation?

Alisa Peskin-Shepherd 3:33
At this stage, no, because there aren't enough collaborative cases right now. To keep me busy, busy enough to be able to support myself. But I still bring my collaborative mindset into every case that I work on into even the highest conflict litigation, I'm still bringing into that process, especially with my client, the ideas and the concepts, and the mindset of a collaborative attorney. And by that I mean that I look at the big picture for my clients in a litigation matter, I look at the big picture and knowing that down the road, the let's say the the mother and father will not be entrenched in certain positions, and they'll want to be able to co parent. So how can I guide my clients and how can I provide some advice that will help manage my client get through the really turbulent and choppy times with a with an eye toward several years down the line so that my client can co parent effectively with the other parents? They bring. That's part of my collaborative training, and I try to bring that along with With me in every aspect of my practice,

Tamsin Caine 5:04
yeah, that makes that makes complete sense. So how would you use the collaborative process to help your clients to achieve a better outcome?

Alisa Peskin-Shepherd 5:16
So I tell my clients when I meet with them, and I go over their options as to the ways that they can move through their divorce process. I use the collaborative process to help my clients see that, that it's not an easy process, it's definitely difficult. But they will have a team of professionals who will support them to get through to a resolution. And the better outcome is also part of a mindset to understand that it doesn't have to be a win lose situation, we're not competing, we want to make it a win win resolution for both my clients and his or her spouse.

Tamsin Caine 6:03
Yeah, absolutely. So you talk about a team of people, a team of professionals who are helping your clients. How does that work?

Alisa Peskin-Shepherd 6:14
With every collaborative case that I have, we the team consists of two collaboratively trained attorneys, a collaboratively trained financial specialist, and a collaboratively trained mental health professional and either one or two mental health professionals. Depending on the case, we can do, we can sometimes just use one mental health professionals, but sometimes the facts and circumstances would call for using two mental health professionals from one for each clients.

Tamsin Caine 6:50
That sounds like things have evolved quite a lot in the US from the collaborative process that that she used in the UK, where you would have definitely two lawyers, one representing each party in the room. But the mental health and financial professionals are not always there. They may be brought in by the by the lawyers at some points, but they're not automatically part of a team. So that sounds quite a different process. So how to how does it work from from day one? How does that come together? Okay,

Alisa Peskin-Shepherd 7:30
well, I first I will say that the process has evolved in the us to this point where where are cases in my area and in the in these Southeast Michigan area, we as a group of professionals have decided that all of our cases, will have the financial specialist and a mental health professional. So when I first started in collaborative 10 years ago, we didn't, we didn't have a team, we It was like you have with the two attorneys. And we would give our clients the choice of whether to bring in the financial specialist and whether to bring in a mental health professional to work with us. But we found as we evolved that truly every case did much better when the mental health professional was in the room to deal with the emotions of the people that were going through this process, because there's so many emotions when they're dealing with this with the divorce. Yeah, I'm just so that I would say that, that, that you know where you are right now in the UK. It's an evolving process. And the collaborative process itself is a framework and it's constantly evolving. We're constantly trying to meet our clients where they are, and serve their needs, because that's, that's really the that's really the goal. And the people who are involved, the professionals who are involved in the collaborative movement really do have a passion and, and compassion to really try to help people going through this difficult time. So I know that wasn't the answer Exactly. to your question that you had asked, but I I did want to get that in there.

Tamsin Caine 9:18
No, I think you're absolutely right. That's that's absolutely fine. So all of the all of the team that are involved are involved from the beginning of the process.

Alisa Peskin-Shepherd 9:29
Yes, most cases come in through the attorneys. And so after the attorneys agree that that they will handle the matter through the collaborative process, they attorneys talk to each other and say okay, who else would be good for these particular people to be on our team who would be a good financial specialists to work with our clients and who would be a good mental health professional. So we we talk about, you know, the The needs of our clients. And we can choose from our, our list of professionally, collaboratively trained professionals to decide who would best suit our clients and who's best suited to help them through the process. So after we do that, we will usually the attorneys will usually reach out to the financial specialists, and the mental health professional to see if they will be on board. And we ask that our clients first meet with the mental health professional, because that person is really going to talk to the parties and get an idea of how they work together emotionally, they have that insight from their training as to what's there, how has the marriage? How have they acted during the marriage? What's their dance, so to speak? How do they respond to each other? It just gives us so much insight into how we can better support the clients through the process and how to manage difficulties as they arise. What are the red flags? What are their trigger points? You know, this really gives us so much insight as we're working through the process. And we rely on our mental health professional to provide that to us.

Tamsin Caine 11:17
Yeah, that sounds like a pretty sensible and important part of the process to have somebody who can understand the emotional side of the relationship as well as, as the rest.

Alisa Peskin-Shepherd 11:29
The next step after that after that our clients meet with a mental health professional. What's really important part of the collaborative process is that the professionals can all talk to each other and share information. So the mental health professional has gathered all this emotional, psychological background information about our clients, and then the mental health professional will share that with the rest of the team. After we are able to share that then we start, we start with our first meeting, which will, which will have all team members there, who when we will review the collaborative Participation Agreement, which is like the founding documents, the contractual agreement between the parties, that is the like the at the core of the process. We all review it together, we answer any questions the clients may have, and then we all sign that agreement. So we're all committed to this process. We're all agreeing that no participants will threaten or resort to court intervention during the pendency of this collaborative work that we're doing together.

Tamsin Caine 12:44
Okay, that makes sense. You mentioned before that there aren't a huge number of collaborative cases, or certainly not enough to keep you busy at the moment what and I asked this to the collaborative floor in the UK that I talked to as well, what makes a case suitable for for this process.

Alisa Peskin-Shepherd 13:07
Most any case can be done through the collaborative process, except probably those cases that involve domestic domestic abuse. So in interviewing our clients, we've tried to garner out whether there's been domestic abuse, and also to determine the balance of power within the relationship does my client feel that he or she can speak up about their own views about their own opinions during a meeting a four way meeting with their spouse in the room? So the cases that are that it's easier to answer what cases are not really appropriate or good for collaborative because I like to start out thinking that every case can be a collaborative case. And then from that point, I start asking the questions, to weed out the cases that won't be successful. And I can tell you that at the beginning of my collaborative practice, I had more I had, I had unsuccessful cases cases that did not complete through the process. In the last five years, I am happy to say that I'm much better at weeding out those cases that would not be good for a collaborative and not trying to force a case and declarative. I think at the beginning, we were all so excited for this new process that we wanted every case to be collab a collaborative case, but not every case is good for collaborative. So through that, those experiences I learned how to weed out those cases that wouldn't be good. Another red flag for me is if my client is not really aware of the finances, and has no trust whatsoever in his or her spouse that they'll disclose all of the information, then it's very difficult to go through the collaborative process, I probably wouldn't want to use the collaborative process for that case.

Tamsin Caine 15:12
Okay. In the UK, there's a feeling amongst a lot of clients, I think that the collaborative process because we'll the professionals that can be involved can be a high cost way of resolving your divorce. Is that how it's viewed in the US? I think,

Alisa Peskin-Shepherd 15:34
yes, I think that people see it as being an expensive process. But it's really not more expensive. I there are many cost savings going through the collaborative process. And those cost savings come in the way of some of the more labour intensive work that has to be done in a litigated case with discovery where both attorneys are conducting discovery to learn what are the assets? What are the issues? What what what are the parenting skills and issues that might come up along the way. Whereas in the collaborative process, you have one professional, the financial specialist, who is gathering all of the financial information for us. So while it may seem to be an expensive process, because we have a number of professionals involved, you're saving money by being more efficient in your process, by not going to court and and waiting around and not letting emotions more often than that drive your decisions. So it's I say, it's, it's not necessarily less, it's, it's not necessarily less expensive than a litigated case. But it is a more efficient process. And we also find that post judgement posts after the divorces, judgement is entered. The people who have gone through the collaborative process have far fewer post judgement issues arise, or if they do they have a method or a mode of resolving those issues that does not involve the court. And so that's another area where there's a lot of cost savings.

Tamsin Caine 17:28
Yeah, I was gonna ask that actually, if you find that clients who've gone through the collaborative process, because they've been supported by the mental health professionals, as well actually come out of the divorce in a better headspace than someone who goes to litigation.

Alisa Peskin-Shepherd 17:47
Absolutely. I can say that without a doubt, they definitely do. It's and it's and it's such a pleasure to see, they may not be happy, they may not like each other at the end of the process. But they definitely have hope and a belief that once they once some time has passed, they know that they will be able to happily be at their children's graduation or their children's wedding, whatever the situation may be in the future. And that's a really good feeling for a family law attorney to have.

Tamsin Caine 18:23
Yeah, absolutely. It's not about coming out of out of the processes best friends, it's about being able to co parent together and being able to be in the same place at the same time if it's needed for your your children, because we parent throughout that lifestyle is not something that stops 18 or 16. When they leave school,

Alisa Peskin-Shepherd 18:44
it absolutely does not stop them. Absolutely does not. And and the whole idea of the collaborative process if we want to model for our clients dignity and respect. So if they see how we handle even how the two attorneys who are advocates for their particular clients and the clients definitely have their own perspectives. If If our clients can see how the two attorneys handle their own disagreements in the conference room, then we're modelling for them, the dignity and respect that we hope they will take with them when they leave the process.

Tamsin Caine 19:22
Yeah, absolutely. Do you find when I've spoken to our collaborative lawyers in the UK, they tell me that they tend to work with what with another, another lawyer, and it tends to be the same person or the same couple of other collaborative lawyers on either side of the table. Do you have a similar situation or are the other a larger group of you working in this space?

Alisa Peskin-Shepherd 19:49
I will say that that's another area where we have evolved in my collaborative community. So at the beginning, it even though we formed these pots, These professional development groups were everybody who had been trained, we would get together once a month and share experiences and information, it was still then broken down into groups of professionals who always only work together. I personally did not like that feeling, it was a very exclusive kind of feeling in the in the community. And it also didn't help to spread the word about the collaborative process, because there were fewer attorneys, who are, who are handling the collaborative cases. So we went through a growth period with the we experienced our pains and, and that kind of thing to where we developed a much larger group of professionals, we, we still get together, and we're the Southeast Michigan collaborative, collaborative group, we all get together, but we share cases amongst each other. So I can't say that there's one attorney who I regularly regularly work with, there are a handful of attorneys that I've called cultivated relationships with, and whom I trust, to work with in this process. And we, because we have these meetings, and we network together, and we've, we've built relationships with each other. In this larger group, we have, we've come up with ways of practice that we all buy into. And so it's the same for all of us now. So I'm happy to say that really helped. I would say, for the practitioners in the UK, if you broaden your circle of who you work with, you're also going to increase the number of cases that you have that are collaborative. And isn't that what we really want is to really help people know that this make the collaborative process the norm, not litigation in family law.

Tamsin Caine 22:01
Yeah, I think you're absolutely right, is it is an outsider looking in. And it's seems the most sensible way of operating, you know, so I have my lawyer, they have their lawyer, we all sit in a room together, and we and we, you know, have support for the professionals. But we sit around and talk about it until we come to a sensible solution. It seems like a no brainer from an outsider. I know it's not quite that straightforward. But yeah, but as an outsider in a kind of go, Well, why why would you bother turning frame with all these emails, if you can just sit down around the table?

Alisa Peskin-Shepherd 22:43
Right, and having more professionals who are involved in the process and who are actively actively conducting cases. And if I talk about attorneys, it's also the same for the, for the financial specialists and the mental health professionals. I mean, there are more collaboratively trained attorneys and there are financial specialists and mental health professionals. And and we really want to increase our numbers in those two areas. Again, to spread out the work and spread the word, you spread the word, you spread the word. More people accept the collaborative process is the norm, men are sitting at the conference room table and trying to work out their settlement and work out their disagreements instead of battling them out in court.

Tamsin Caine 23:29
Yeah, makes it makes a stat more sense. In in the UK, one of the things clients seem to be fearful of with collaborative process is that if they're unable to reach a decision within the process, then they have to begin again and start with new lawyers. Is that still the case in the US?

Alisa Peskin-Shepherd 23:49
Yes, yes, absolutely. And it is actually one of the I would say, foundations of the collaborative process. It's intentionally, the process is intentionally structured that way so that people make a commitment to the process and stay invested in the process. They don't want to have to start over again. It keeps not just our clients invested in the process, but it also keeps the attorneys vested in the process, because we can't represent our clients after the if we've, if we've represented them in the collaborative process. We can't continue to represent them if the case falls out of the process. So it's intentionally designed to keep people bested in this collaborative process. Who wants to start all over again. After you've invested that much time and energy and finances. You sit at the table. You sit with the what I like to say sit with the discomfort at the table. But again, one of the strong points of the collaborative practice is that by sitting with the discomfort in the room, you can come on With much more creative resolutions much more creative options.

Tamsin Caine 25:07
Yeah, and I, that makes sense, I suppose it it is just one of the things that seems to put people off using the process, the thought that will if it doesn't work, we might have to start from scratch again. I get why, why it helps people be invested. But there's something that that some lozi using over here called collaborative light. Is that something that your use? Or you're aware of?

Alisa Peskin-Shepherd 25:37
Yes, I'm, I'm very aware of it. We used to also sometimes call it a small c instead of a big C for the word collaborative, where, where there, they may be collaboratively trained professionals, but they don't sign the Participation Agreement. Yeah. So that if the case is not successful, through the collaborative process, they then the clients and the attorneys can continue in the court process. Again, that was more popular earlier on in the movement. And in my area, it's not so popular anymore. Sometimes we have clients who don't want to buy into the collaborative process. And we're both collaboratively trained attorneys. And we know because of the relationship we've developed with each other, that we can trust each other, we can communicate with each other in a open and honest way, still advocating for our client, but we don't have to get as adversarial we won't be as adversarial because that's just not in our blood when we're working with each other. So without labelling it as collaborative light, or the little see, because that's our, our nature four working together on a case that is chord based, it may still feel and have some of those components of the collaborative process.

Tamsin Caine 26:59
Yeah, without having to guess commit to the whole, starting from scratch again thing,

Alisa Peskin-Shepherd 27:05
right. But if people do sign a collaborative Participation Agreement, where they have to trust the process, and trust that they've got a team of professionals who will get them to that, and who will help them work through all the difficult problems that they're having to a resolution, so that if there has to be trust, trust in the team trust in the process. And it's our jobs as the professionals to help our clients maintain that, that level of trust with us and with the process.

Tamsin Caine 27:41
Yeah, they've got to know that they're going into it without, without a question mark over whether this is going to go to an end or not. They've got to know that it's going to go to an end.

Alisa Peskin-Shepherd 27:51
Right, one of my earlier cases, we started out collecting in the collaborative process, and we all signed the collaborative Participation Agreement. But through the through our meetings, I kept hearing my spouse, my client spouse, say things that that were red flags for me, like I thought, like, Who is he talking to? Is he talking to somebody outside this conference room? Is he talking to somebody outside the process. And sure enough, as we got far enough along, I realised that that that person only had one foot in the conference room. The other foot was in a, a highly litigious attorney's office who was feeding him advice and information that was very counter to our collaborative process. So there was no way that our process could be successful. So long as the client bad person was not committed to the process, and was being fed information by somebody who was not familiar with a collaborative process and just wanted to litigate. Just wanted to litigate that person's case. So that that that was another early lesson that I learned.

Tamsin Caine 29:04
Yeah, you do. It does take to a guest, doesn't it? To Yes, you know, both parties have got to one to two settle things amicably and, and leave the process on it. on good terms. If there is one party who wants to take the other for everything they've got, then come into any sort of amicable solution madrick by mediation or collaboration is going to be impossible. In my experience,

Alisa Peskin-Shepherd 29:34
I like to say that it takes two to make a good marriage and it also takes to to have a good divorce.

Tamsin Caine 29:42
I like that.

Alisa Peskin-Shepherd 29:43
Yeah. You know, it's true.

Tamsin Caine 29:46
I do know it's true. I absolutely denotes to that's really cool. So, if you had a friend who is in the early stages of separation, what one piece of advice would you give to them?

Alisa Peskin-Shepherd 30:00
I would tell them to appreciate the gift of time. Be patient know that this this phase of your life is not going to exist forever. trust the process, whichever process you choose, but especially if you're choosing the collaborative process, and, and trust your team, the the process and your, your matter will evolve and unfold as it is supposed to. And the other gift of time is also, especially if you're in a highly high conflict situation, that time or you can just take a deep breath to before reacting, and instead taking a deep breath and being able to respond without a tonne of emotion. That's another way that the gift of time can benefit you. So that's that's the advice I would give to a good friend of mine.

Tamsin Caine 31:01
That said, That certainly is really, really good advice. Elisa, thank you so much for joining me today. I've really enjoyed talking to you.

Alisa Peskin-Shepherd 31:09
Thank you so much.

Tamsin Caine 31:15
Thank you for listening to the smart divorce podcast. If you'd like details of our guests today or of myself so you can get in touch. Please check out the programme notes. Many thanks. See you again soon.