Risk Management: Self Restraint in Speaking and Writing

On February 10, 2010 the NY Times editorial page described a situation in which a Texas nurse was facing serious criminal charges for reporting a physicians’s misbehavior in an unsigned letter to the board of medical examiners. She used a patient’s name and other specific patient information to substantiate her claims. The doctor was sanctioned by the medical board but he tracked down the nurse who made the anynomous complaint. Her computer was confiscated by prosecutors for evidence that the nurse wrote the offending letter. Texas is one of a few States that does not protect professionals who lodge complaints against other professiions.   

Arbitrating Child Custody Disputes

On July 1, 2009 the New Jersey  Supreme Court, relying on its parens patriae powers, gave legitimacy to the non-judicial of procedure of  arbitration to resolve child custody and parenting time disputes. As such Fawzy v. Fawzy, 199 NJ 456 (2009) is a groundbreaking case and, I believe, establishes a practice that is unnecessary and dangerous. When this couple divorced they mutually agreed to use binding arbitration to resolve future disputes. It is not surprising that, as the arbitration unfolded, one party became very dissatisfied. The devise that was supposed to limit litigation and legal fees wound up in the Appellate Division and then in the New Jersey Supreme Court. In order to get court review of an arbitrator’s rulings, a party must establish a prima facie case of harm to the child. This standard for court intervention is much more narrow that a “best interests” standard and makes judicial intervention much less likely. This case opens the door wider for mental health professionals, among others, to become involved in a highly emotionally charged situation. The Court built in several excellent safeguards: including having to establish that both parties understood the voluntary arbitration process they are choosing; a record of all documentary evidence is kept; all testimony must be recorded verbatim; and the arbitrator must state in writing or otherwise record his or her findings of fact and conclusions of law with a focus on the best-interests standard. If this idea catches on, I expect that more mental health professionals will be subjects of licensing board complaints. This is the danger. The issue of necessity is addressed in other articles on this website.

20 Rules of Engagement for Parent Coordinators

Rules of Engagement for Parent Coordinators

Christopher R. barbrack

I know this isn’t a good way to start but I have to apologize at the outset because I am not sure how strongly I believe the ideas and sentiments expressed in the first part of this article. First, I am not certain that having parent coordinators is a good idea. I think we expect too much when we want more than what an informed court can and should give to divorcing parents and their children1. I know that attorneys and courts can be frustrated by the vicissitudes of parental strife in connection with divorce but the parent coordinator may not be a good “solution” to whatever this problem is. In fact, there might not even be a problem, especially if courts and attorneys step up to their responsibilities and learn to live with the various stresses that occur in the divorce process2. Second, I am not convinced that it matters (I could write a paragraph on the word “matters” in this context but will do so elsewhere) who performs in the role of parent coordinating so long as parent coordinators are regulated by the courts and the appropriate licensing boards, hopefully in compatible ways. At the same time, I feel that there are categories of professionals who should not be permitted to perform this role, especially those without formal extensive training, education and experience in a recognized field of mental health. Third, since I spend most of my new professional life

¹ See R 5:3-3

² I know that this movement is all about the welfare of children but I am not convinced that this is all of what it is all about. I am also suspicious when professionals say, “…it’s about the children…” as I am when warring parents make similar declarations. What parent or professional for that matter can honestly think only about the children and not their own selfish interests which may or may not be congruent with the needs of children?

as a plaintiff’s attorney in professional malpractice suits, I have a certain view of the vulnerabilities of professionals, such as parent coordinators, and there are many. Fourth, representing mental health professionals, acting as parent coordinators, who have had licensing board complaints lodged against them, may give me a skewed sense of the kinds of parents who participate in this process.

Please consider these four points as qualifications on what follows immediately below. I especially direct this caveat to the fourth point above. My comments may be only applicable to a discrete subset of parents who wind up working with a parent coordinator.

The overwhelming majority of divorced or divorcing parents do not manifest levels of child-related conflict that warrant the involvement of a third party in the most intimate parts of their relationship. The parents who need this kind of help are atypical in other ways. They often are brimming over with complicated psychological problems, interpersonal deficits, and very poorly controlled emotions, usually intensely negative.

In developing the following suggestions, I have assumed that parents who need the services of a parent coordinator suffer from serious psychological problems. I concede however that it takes only one parent with psychological problems to force both parents into the embrace of a parent coordinator. I would also agree that the serious psychological problems I refer to may be of transient nature such as in the case of an Adjustment Disorder with Mixed Disturbance of Emotions and Conduct. However, more refractory cases my involve parents who present with virulent Axis II problems.

I find it difficult to justify the time and expense that come with the services of a parent coordinator in cases that are not very difficult or where the parenting problems are not complex, refractory and suffused with unconstructive thoughts, feelings and behaviors. In easier cases of parental conflict over children, the court should be able to reach a resolution without a parent coordinator.³

³ Something I rarely hear about is the fact that ordering a couple to work with a parent coordinator amounts to passing the cost of this judicial function on to parents, many of whom cannot afford to pay for it or at least cannot supplement the original retainer. I wonder if a Court, perhaps unwittingly, would ever make such a referral out of anger or frustration with the recalcitrant parents.

My experience has taught me that working with these difficult cases can be very challenging even for the most astute mental health professionals. This work should be undertaken with a great deal of humility, circumspection and preparation. At the same time, for their own sakes, parent coordinators must recognize their role as emotional shock absorbers for the courts and for society as a whole. They should not be surprised when the inevitable parent lashing out occurs. While such events are very predictable, and should be taken into account before one agrees to take on the parent coordinator role, it is still difficult to foresee and prepare for the intense anger and vitriol that can erupt and spill all over the parent coordinator. For these reasons, parent coordinators should be prepared to help themselves by using techniques such as stress inoculation, relaxation, cognitive reframing and peer supervision.

The avenging parent who accepts the services of a parent coordinator who is a licensed mental health professional has an additional weapon in her arsenal: lodging a complaint with a licensing board.⁴.

⁴ Clearly an unlicensed “psychotherapist” in the professional coordinator role enjoys a superior strategic position since there is no licensing board to receive complaints against her, to review her work or, for all practical purposes, to mete out sanctions against her.

⁵ These differences will depend on how the role is endorsed by the Supreme Court and how the role meshes with various licensing laws and regulations.

The legal status of parent coordinators is likely to change in the near future. However, whether it does or does not, the question arises of what can be done by professionals in the meantime and afterward in order to reduce the likelihood of negative outcomes in the parent coordinator process. I would offer what I have termed Rules of Engagement:

1. Know your licensing regulations. If the court establishes rules for parent coordinators, it will likely advert to various licensing laws and regulations. This will mean two things. First, parent coordinating practices may conflict with licensing laws and regulations. Second, these differences may vary depending on what professional is performing it5. For example, a licensed psychologist who performs parent coordinating is still subject to the laws and regulations that govern the practice of psychology. The same goes for social workers and marriage and family counselors. To the extent that these licensing laws and regulations are different, the rules governing the parent coordinator will be different. If mental health professional licensing laws and regulations are somehow eventually co-opted by the parent coordinator role and do not apply to the process, then certain issues such as confidentiality, HIPAA compliance, etc. must still be explicitly addressed if only to eliminate possible confusion over what rules apply to parent coordinating.

2. Know yourself. Since these are complex cases, you should not agree to function as a parent coordinator unless you have a solid record of training and experience in a field of mental health. I believe that taking on such a role without this background is reckless and unprofessional. This stance is does not conflate parent coordinating and more traditional psychological therapies but recognizes that these two types of interventions share many commonalities. For example, both deal with and attempt to modify, shape or change feelings, thoughts, and behaviors. Both deal with persons who have been unable to make basic life adjustments that most others have been able to make. Both deal with persons who exhibit moderate to severe impairments in thinking, feeling or behaving. Both heavily rely on talking as a medium of promoting change. I think that parent coordinating might benefit following more traditional psychological therapies by basing its interventions on some explicit theories of human behavior. For example, how is it that the parent coordinator helps parents change? At this stage, parent coordinating is bereft of any widely accepted theory of how to understand and change parental behavior. I recently read a comment by a practitioner in this area that an advantage of parent coordinating would be to “force parents to face reality”. Courts have coercive authority; parent coordinators do not and should not have such coercive authority. A professional who is experienced in working with persons suffering with acute mental and emotional problems knows that nothing is forced…not ever. This is not how change takes place in this area. In addition, while attorneys and trial courts have been quite ready to grant some kind of coercive authority to mental health professionals, appellate courts have always been properly critical of such surrendering of the court’s authority⁶.

⁶ See P.T. v. M.S., 325 N.J. Super. 193, (App. Div., 1999); Capell v. Capell, 358 N.J.S. 107 (App. Div. 2003), cert denied, 177 NJ 220 (2003); Pergoy v. Pergoy, 358 N.J.S. 179 (App. Div. 2003).

⁷ I advise this while biting my tongue. Many of these mind numbing documents are not worth the paper that they are written on but still might contain a nugget or two that is useful.

⁸ (1986) Chess, S. & Thomas, A. Temperament in Clinical Practice. NY: Guilford Press.

3. Before the first session, a parent coordinator should have read all of the relevant documents. For example, child custody reports should be reviewed.⁷ There should be some kind of preliminary assessment of the case and the participants. This should include at least a nod to adult developmental issues and considerations based on the literature on child temperament ala Chess & Thomas⁸.

4. The parent coordinator should have all documents prepared for the first session. The most important of these is the engagement letter and a description of your services and billing practices. It is important in this letter inform the participants as well to shape and control their expectations as well as your own. The engagement should set down ground rules. These ground rules should deal with the scope of the parent coordinator’s authority, remedies for disagreements with the parent coordinator, confidentiality, and the use of and access to the parent coordinator’s records and notes. The engagement letter should define emergencies and explain how emergencies will be managed. The engagement letter should address what will happen to the parenting coordinating process if one or the other parent files a complaint with a licensing board or files a malpractice suit. Billing practices must be carefully described. This would include policies on missed sessions and insurance reimbursement. Duties to warn and protect, protection of the children and other similar issues also should be addressed. The engagement should forecast the kinds of problems and eruptions that inevitably occur. This will help to diffuse and dilute anticipated problems. By anticipating the inevitable anger, disappointment, projections and displacements, the engagement letter can serve as a symptom assignment or paradoxical intention and thereby reduce the likelihood that these destructive dynamics and outbursts will crop up.

5. No case should be accepted in which one or both parents are so impaired and lacking in control that they are not able to participate in a constructive way. In other words, it is more than acceptable to decline to take a case. Courts who assign parents to parent coordinators should understand that declining a case may be a sign of professional judgment and maturity rather than a lack of interest in or stamina for being a parent coordinator.

6. No case should be accepted on an open ended basis. Parent coordinating should be conceptualized in incremental units with each unit including the option of discontinuing for lack of progress or inability to pay.

7. Document everything.

8. Formulate specific goals that are operationally defined. Progress toward these goals should be assessed periodically and should serve as one basis for deciding to continue or terminate the process.

9. Remember, parent coordinators are not miracle workers. Set realistic goals and expectations.

10. Don’t let the perfect be the enemy of the good. Parent coordinating should be limited to a number of sessions even if every goal has not been fully achieved [….life goes on]. Adding extra sessions should be done only with the agreement of the parents, the parent coordinator and the court and should be based on current achievements and prospects for gains in the immediate future.

11. Multiple formats should be available to participants including e-mails, telephone conferencing, audio and videotaping sessions.

12. Sessions do not have to occur on a weekly basis. Sessions can be bunched up or spread out. Shorter or longer sessions may be more effective than the traditional hour-long session at some junctures.

13. Role reversal, role playing, psycho-drama, and guided imagery should be used as problem solving techniques.

14. Seek someone or ones to talk to about your work. Parent coordinating can be emotionally and intellectually taxing. These difficulties include having to deal with attorneys on both sides and with courts that may seem unfamiliar with or unsympathetic to the dilemmas encountered by the parent coordinator⁹.

⁹ In doing their respective jobs, attorneys and various mental health professionals who work with the same clients, always have different roles and responsibilities. Mental health professionals have to be vigilant in order avoid being manipulated into inappropriate roles. This dynamic can be very wearing for the mental health professional. See for example, Moser & barbrack (2004)

15. You’re not Freud so don’t try to act like him. Clarify your role and stick with it. Avoid confusing the participants by going back and forth between being a parent coordinator and some other brand of professional.

16. Be realistic regarding your fees. Anticipate what you will do when the initial retainer runs out and one or both participants refuse to pay any more.

17. Get clear regarding what you might expect from the court vis-à-vis the court, the lawyers, and the Boards.

18. Appreciate that there is a fine line separating being highly experienced and being jaded. If you protect yourself by have to know precisely what a case is about and where it will wind up and if you communicate this to participants, some of them will react very negatively and complain that you are too brusque, biased and unsympathetic.

19. In a related vein, work on listening. If in your life you have come across two people, therapists included, who listened to you, you are very fortunate. We all know that listening requires not talking a lot. But it also means not staring at the speaker in an attempt to convey interest while making the speaker very self conscious and uncomfortable. Being listened to should be a pleasant and satisfying experience. It requires refraining from thinking about your own special problems or what you will say next while you are listening. Listening is a skill that very few people recognize and appreciate and even fewer people possess. One reason listening is difficult is that it feels like giving up control and risking the prospect of being overwhelmed by the participants. I believe this is a misperception. The parent coordinator has to establish and maintain control of the relationship. However, listening does not equate with giving up control rather it is a technique to allow parents to tell you what is wrong and what they need. You will not be overwhelmed.

20. Related to the above, work on sitting still, allowing the spotlight to be somewhere else, focusing on the other and on what is going on in front of you. Be patient and let things unfold.

I am afraid that the Parent Coordinator juggernaut will not be stopped. I am grateful to not be in a position of having to promote or endorse this new role without any real idea of whether it is necessary, who should perform it, who should receive it, how it should be done or what the possible negative outcomes may be. When the welfare of children is involved there is a tendency toward a self righteous impulsivity to do something, anything. Sometimes, even when children are involved, the adage of, “Don’t do something, just stand there [and try to understand the unique situation before you]” should be respected.

Suggested Readings

(2000) barbrack, C.R. Triggers for countertransference: Implications for training of experienced mediators in highly conflicted divorce and child custody cases. Presented at Joint Meeting of NJ Institute for Continuing Education and New Jersey Association of Family Conciliation and the Courts

(1991) barbrack, C. R. Beyond the guessed interests of the child: The role of the expert in child custody evaluations. The Carrier Foundation Newsletter. Belle Mead, New Jersey

(2000) Baris, M.A., Coates, C.A., Duvall, B.B., Garrity, C.B., Johnson, E.T., LaCrosse, E.R. Working with High Conflict Families of Divorce: A Guide for Professionals. New Jersey: Jason Aronson Publishers

(2005) Boyan, S.M. & Termini, A.M. The Psychotherapist as Parent Coordinator in High Conflict Divorce. New York: Hayworth Press.

(1997) Cohen, I.M. and Rodgers, A. (1997) Attorneys and Mental Health Professionals: Turning Litigants Back into Parents. The Colorado Lawyer, 26, p. 51-54.

(1992) Fisher, R. Ury, W.L. & Patton, B. Getting to Yes: Negotiating Without Giving In. Boston: Houghton Mifflin.

(2006) Friedlander, M.L., Escudero, V & Heatherington, L. Therapeutic Alliances on Couple and Family Therapy. Washington, DC: American Psychological Association.

(1994) Garrity, C.B. and Baris, M.A. Caught in the Middle: Protecting the Children of High-Conflict Divorce. New York: Lexington Books.

(1997) Johnston, J.R. and Roseby, V. In the Name of the Child. New York: The Free Press.

(2000) Moser, R.S. & barbrack, C.R. An urgent call: Treating psychologists are not expert witnesses. The Independent Practitioner, 278-281 (American Psychological Association)..

(1999) Pearson, J.. Court Services: Meeting the Needs of Twenty-First Century Families. Family Law Quarterly, 33 p. 617-635.

(2001) Sullivan M. & Kelly, J. Legal and Psychological management of cases with an alienated child. Family Court Review, 39, 299-315

Collateral Release Form

Collateral Individual Informed Consent Form

Welcome!  You have been invited to participate in the treatment of ________________________________ who is a client of _____________________________

(patient name)_________________________________________ (therapist/examiner name).

Your role as a participant or “Collateral” may be that of a concerned family member or another important figure in this patient’s life. Whatever your role, whether to give

information, to receive information, to support the patient in the treatment, or to help the patient improve his/her relationships, it is important that you are aware of and

agree to what your participation in a session does or does not mean.

Please be aware that your participation does not mean that you are also a patient of the therapist/examiner who is treating _________________________________.

There are no promises or guarantees regarding how your participation may affect you, or the patient, or your relationship with the patient, or your relationships with others.

You should understand that your participation in the session is voluntary.

Please be aware that what occurs in a session with a therapist/examiner and a patient is considered confidential.  Since you will be a part of that confidential session, we hope

that you will also respect that confidentiality and understand that disclosing private, confidential information without the patient’s permission may be hurtful to the patient.

Participation in a psychotherapy session, as a Collateral, may also seem frustrating and may arouse strong, difficult emotions.  You may discover that the way you think about

the world, the way you view your past, present, and future, and the way you relate to others may be altered.  You may be asked to help the patient in ways that may require your

activity either in or out of the patient’s session.

You understand and agree that your participation will be documented in the patient’s record.  Thus, if the patient wishes to release his/her record for any purpose, it is possible

that documentation of your participation in the patient’s session will also be released.

Since you are not the identified client, you cannot bill any insurance company or third party for any fees that are paid for the client’s treatment.

If at any time, the client does not want you included in a session, you agree to stop your participation immediately.

Please do not hesitate to ask the therapist/examiner any questions if any of the above seems unclear or if you do not wish to participate as a collateral.

After you have read this form, please sign your name and the date below indicating that you have understood and agree to what you have read above.  Thank you.

_______________________________________         ______________________________
Signature of Collateral if age 14 or over                       PRINT COLLATERAL NAME ABOVE

__________________________________________________________________      ______________
Signature of Parent or Sole Legal Guardian if Collateral is under 18 years of age               Date

__________________________________________________________________      ______________
Signature of Other Parent if joint custody of Minor Collateral                          Date

Parent Coordinators in the Family Court: Another Questionable Venture

Parent Coordinators in the Family Court: Another Questionable Venture

Christopher R. barbrack, Esquire, Ph.D.

I have always been fascinated by the mutual attraction between the family court and mental health professionals. I would call it at best a marriage of convenience and it is about to give birth to a new offspring: the Parent Coordinator. When such a new development reaches a critical mass, as this one has, it is difficult to argue against it, yet I would urge caution before any such role is endorsed by the court. I should not be surprised by this new development in view of a history that includes the court’s wholesale acceptance of child custody evaluations and non-economic divorce mediation. The first question that occurs to me is who is advocating the Parent Coordinator idea.  I doubt that parents or children are behind this movement. Whose interests are being served?

I am not among those who claim to know what ought to be done to remedy the situation in the family court. In fact, I don’t even understand the problem. Hence, one might question my standing to comment on this issue. I am not a Parent Coordinator. I have never used the services of a Parent Coordinator. However, I have had the privilege of representing, before licensing boards, Parent Coordinators against whom parents have lodged complaints.  In addition, before being admitted to the Bar in1989, I was a tenured associate professor at Rutgers University’s Graduate School of Applied & Professional Psychology and a practitioner of clinical psychology. I have also served as an ESP panelist in Mercer County for the past fifteen years. Whoever is pushing the Parent Coordinator role may have different perspectives than mine but I don’t believe they could be any more informed.

Like so many other solutions, the Parent Coordinator role makes a lot of sense on the surface. Certain divorcing or divorced parents, who cannot resolve there differences over their children, would be referred to Parent Coordinators to work things out. This proposal seems to be based on four basic assumptions, each of which is questionable. First, the family court is overwhelmed by motions and trials involving parent conflict over child rearing issues. Second, managing these disputes requires certain knowledge and expertise that exist but that the family court lacks. Third, the court has the power to transfer the management of these disputes to non-judicial surrogates. Fourth, there are non-judicial options for handling these disputes that are better than the family court.

I do not know if family courts are overwhelmed with cases involving parental disputes over children. Anecdotally, over the span of my legal career, I have not noticed family courts having to cope with a surge of parent –child issues. In fact, if anything, sitting in the halls of court on a given day, the activity in and around the family court seems to be less than it was fifteen years ago. This is a factual issue and I may be way off base. For the sake of argument, I am willing to
assume that the family courts are overwhelmed by cases involving parental disputes over children.

The next assumption involves whether there is a knowledge base and expertise to apply to parental conflicts over children. This is a big question and requires more space than afforded here. In brief, I do not believe that there is an empirically valid knowledge base or expertise in the area of helping divorced or divorcing parents to resolve their child-related conflicts.  Further, this issue has to be considered in relation to what alternatives are available. Here is where the Parent Coordinator role comes into play and the question becomes: does a Parent Coordinator, or anyone else for that matter, have greater expertise in resolving parental conflicts than the court? If you express an opinion, I would ask for the bases for this opinion just as I would in cross examining an expert witness. I would be stunned to receive any meaningful responses. The answer is simple: there is no evidence that Parent Coordinators have any more expertise than the family court in resolving parental conflict over children. Put another way, there is no evidence to suggest that Parent Coordinators are as effective or more effective than the family court in managing parental disputes over children.

In light of these facts about effectiveness, I am not surprised when my Parent Coordinator clients express the need for two things: power and protection. They want power to direct parents to do this or that and they want insulation against the inevitable avenging parent. Parents have learned that filing a complaint with a licensing board has a dual role: vengeance against and evisceration of the Parent Coordinator. I don’t think it is a coincidence that power and protection are facets of the judicial role. A court can coerce and a parent can’t strike back at the court. I read where one advocate of Parent Coordinators believed that the Parent Coordinator would “force” parents to face “reality” vis-à-vis their child-related disputes. In fact, it is the court’s role to use its coercive authority to force parents to face reality. Any mental health professional that functions as a Parent Coordinator should eschew the coercive role as it is inconsistent with virtually all widely accepted approaches to resolving human problems from a mental health prospective. Parent Coordinators may wish to function as mini-courts but this should not be permitted.

How does the Parent Coordinator proceed without coercive authority and without immunity from parental attacks? A good book published last year by Boyan & Termini, The Psychotherapist as Parent Coordinator in High Conflict Divorce describes a very ambitious picture of the Parent Coordinator role – one that requires much professional training and experience. What is missing here is any evidence that these experienced professionals are effective or are more effective that the court in managing parental disputes over children. As a matter of fact the “effectiveness” construct has not even been defined. Assuming that effectiveness will be a concern to someone at some time, the most elemental issues needing attention would involve questions like this:  Is effectiveness defined by process variables such as number of cases resolved, time taken to resolution, participant satisfaction with the process? Or is it defined by outcome variables such as reduction in children’s emotional and behavioral problems? In a related vein is the issue of when such measures are taken. Or both? An interesting study published last year of the longitudinal effects of divorce mediation by Sbarra & Emery (Coparenting Conflict, Nonacceptance, and Depression Among Divorced Adults: Results From a 12-Year Follow-Up Study of Child Custody Mediation Using Multiple Imputation) revealed some very troubling negative outcomes for male participants in divorce mediation. These negative outcomes would never have surfaced if outcome measures had not been taken at all or not taken over a period of years. Is this scientific rigor too much to expect before sending parents and children into the embrace of Parent Coordinators?  In short, before the role of Parent Coordinator is endorsed and formally launched, it should be defined and studied. I am not optimistic that this will be done. The grandparent of these family court-mental health professional liaisons is child custody evaluations despite the fact that basic terms such as “the best interests of the child” have never been defined and, even if they were defined, mental health professionals would not have the technical and empirically validated tools to measure such constructs. Nonetheless, parents retain custody evaluators or are referred to them in droves often, I believe, to their detriment.

Again, borrowing from the literature on mediation suggests that these ancillary judicial services involve more than meets the eye. For example, the issue of screening or assessment of competence to participate in mediation has elicited widely different positions. Crawford (Determining Capacity to Facilitating Competencies: A New Mediation Framework, Conflict Resolution Quarterly, 20, 2003) objects to such screening while Beck (Defining a threshold for client competence to participate in divorce mediation. Psychology, Public Policy and Law, 12, 1-35, 2006) argues that it is essential. One theme that bridges these widely divergent views is that when a participant is found to be incompetent to participate, the remedy for that person goes beyond what non-mental heath professionals can or should handle. I would argue that a substantial number of parents referred to a Parent Coordinator would require some kind of remediation before meaningful participation is likely to occur.

One aspect of all of these mental health interventions in the family court is cost shifting. When a case is referred for a child custody evaluation, divorce mediation or parent coordinating, one or both parents have to pay very high fees. Granted, there may be a reduction in lawyer’s fees but I have seen no hard data that show that these interventions are cheaper than using the courts that are supported by tax dollars.

The next issue is whether the courts have the authority to shift these parental disputes over children to Parent Coordinators. . While attorneys and trial courts have been quite ready to grant some kind of role to mental health professionals, appellate courts have always been properly critical of such surrendering of the court’s authority [See P.T. v. M.S., 325 N.J. Super. 193, (App. Div., 1999); Capell
v. Capell, 358 N.J.S. 107 (App. Div. 2003), cert denied, 177 NJ 220 (2003); Pergoy v. Pergoy, 358 N.J.S. 179 (App. Div. 2003)]

What do we do in the meantime? This is what I do. I have counseled my Parent Coordinator clients to accept the fact that they might as well accept that are paid to be emotional shock absorbers for the court, for attorneys and for the society at large. If you agree to do this work, you should be prepared to be ineffective and abused from time to time.

I have heard about the possibility of lay persons functioning as Parent Coordinators. I am not as put off by this prospect because it is modest and lacks the usual professional pomp and expense. In 1979 a psychologist from Rochester published a research article about the psychotherapeutic techniques used by hairdressers. The hairdressers seemed to hear the same kind of problems that are brought to psychologists and they seemed to apply the same kinds of interventions, all for the price of a permanent wave. Are hairdressers as effective as psychologists in helping to ameliorate human problems? This is a very subversive question and no one knows. Could hairdressers or any one else for that matter function effectively as Parent Coordinators? No one knows for the reasons given above. However, if laypersons are permitted in this role, why pay high priced professionals? For me, this question brings into stark relief the difference between airline pilots or plastic surgeons on one hand and Parent Coordinators on the other. I am not going to fly with an untrained pilot nor will I have my wrinkles smoothed by an amateur surgeon.

I don’t question the good intentions of those who are advocating the Parent Coordinator role. However, the fact that family courts are overwhelmed should not lead to the endorsement of yet another role that is poorly defined, only vaguely understood and of questionable effectiveness and cost. The best place for these parental disputes over children may be the family court. This may not be perfect for the participants but it may be the best we can honestly do at this time.

Problems With Malpractice Insurance Questionnaires: The Tip Of An Iceberg

Problems With Malpractice Insurance Questionnaires: The Tip Of An Iceberg

When asked about the risks of a malpractice law suit against a mental health practitioner, I respond with three generalizations based on my experience: 1) mental health professionals are almost never sued, 2) when they are sued, they rarely lose the law suit and 3) when they do lose, if the loss is covered by the carrier, the amount of the loss usually falls well within the policy limits.

Mental health professionals tend to be very risk-averse. Therefore, practitioners should be acutely sensitive to the proviso “if the loss is covered by the carrier.” A recent case, against a New Jersey psychiatrist illustrated this point. The basis of this lawsuit was that, among other things, the psychiatrist inappropriately touched my client. The carrier issued a so-called “reservation of rights” letter, informing the psychiatrist that it would not indemnify him (i.e., not pay) for any judgment stemming from the inappropriate touching. The carrier relied on a provision of the psychiatrist’s malpractice insurance policy which excluded coverage for sexual acts.

By this act, the carrier did two things: first, it concluded that certain conduct was sexual and second, it concluded that this conduct was the only thing the psychiatrist did wrong. In this case, I believe the nature of the physical contact was ambiguous and was not the only instance of malpractice. This vignette illustrates a dynamic of the practitioner-carrier relationship that is almost never discussed, that is, the insurance carrier is not your friend and from the very first report of a problem, part of what the carrier and its claims reps and attorneys do is determine the carrier’s liability for you and, at least in my experience, a prominent focus of this effort is not to find ways to extend a protective umbrella of coverage to the practitioner.

Getting a good handle on the relationship between you and your carrier is a preface for this article which deals with completing your application for malpractice insurance coverage. If this application is done carelessly or incorrectly, you may find yourself without coverage and won’t know it until it is too late.

A recent federal case (Coregis Insurance Company v. Baratta & Fenerty, Ltd., ___________ 3rd Cir 2001) deals with a malpractice suit filed against a law firm by one of its clients. The facts of this case are unimportant except to say that the client first contacted the attorney in 1979 and a law suit was filed in 1981. The law suit was dismissed in 1991 due to inaction by the plaintiff and the client was informed of this by the attorney in 1994! The attorney attempted to reinstate the case but the state supreme court finally denied this motion in April 1996.

Several days after the state supreme court issued its opinion, the attorney’s law firm applied for malpractice insurance for the period from May 1996 to April 1997 and apparently failed to list the above case. The policy included an exclusionary clause to the effect that coverage would be denied for acts, errors or omissions occurring before the policy period where the insureds knew or could have reasonably foreseen that their past behavior might form the basis of a claim against the law firm.

Not surprisingly, the original client sued the law firm and the malpractice insurance company refused to indemnify them. The law firm appealed and lost. The court’s reasoning is worth paying attention to. First, the court opined that a reasonable attorney would have recognized that he had a dissatisfied client who would undoubtedly take further action absent a “miraculous and unlikely turn around.” Second, among other things, in view of the age of the case, the attorneys employed a statue of limitations defense but the court opined that a reasonable attorney could not have been certain that the statute of limitations had expired.

Many of my mental health practitioner clients do not take sufficient care in responding to malpractice insurance questionnaires. They pay the premium and feel secure. The confluence of this case and the natural adversarial relationship between carrier and insured, strongly suggests that a review of past and current clients should be conducted prior to responding to the questionnaire. The extent to which such a review is formal, comprehensive, conducted by an arm’s length entity and is in writing may diminish or eliminate the problem.

The Risks of Sharing Office Space: You Are What You Appear To Be

The Risks of Sharing Office Space: You Are What You Appear To Be

On March 16, 2001 the United States Court of Appeals for the First Circuit (Massachusetts) decided a case that might have (and I stress “might have”) far-reaching implications for New Jersey mental health professionals. The case of Gosselin v. Webb, et al.¹ involves a group of attorneys being sued by a client. The client’s legal theory of liability is grounded in partnership law where partners can be held legally liable for each other’s actions, commitments, misdeeds, etc. Here, the defendant attorneys were an unaffiliated group who shared space and some expenses, not a partnership.

The Circuit Court used the construct of “partnership by estoppel” to reach the conclusion that the defendant attorneys were liable for one another as if they were a partnership. The elements of partnership by estoppel are (1) the would-be partner holds him- or herself out as a partner, (2) that such holding out is by the would be partner directly or with his or her knowledge, (3) that the plaintiff had knowledge of such holding out and (4) that the plaintiff relied upon the ostensible partnership to his or her detriment.

The meaning of “holding out” as a partnership is critical. What does it mean? The Court parses this term and develops several guideposts. First, in conversation with the client, the word “with”, as in, “I am in business with these others,” was used, implying membership in some kind of group. The ambiguity of this term was not enough to provide the defendant with protection. Second, there was a lobby directory (i.e., a sign) that listed names in a “partnership-like arrangement.” Third, one defendant directed the client to go to the group of unaffiliated lawyers to transact some legal business with another member. Fourth, there was communication between attorneys in the group about the client’s legal business. Fifth, another attorney in the group agreed to represent the client on another matter.

This analysis is very fact driven and there is no immediate generalization from space/expense sharing unaffiliated attorneys in Massachusetts and an unaffiliated group of space/expense sharing professionals in New Jersey. However, the occurrence of sharing office space and office expenses and of having signs, advertisements, and other displays is not uncommon among mental health professionals in New Jersey. In light of the Gosselin decision, the risk-averse practitioner who is sharing space and expenses with others, should consider taking certain precautions. These range from placing a disclaimer in the waiting room and at the bottom of bills stating that “the professionals in this office are independent practitioners and are not affiliated with one another,” to formalizing the group arrangement into a business entity such as the Limited Liability Company.

1) Gosselin v. Webb, Sullivan, Hurley and Field a/b/a Field, Hurley, Webb & Sullivan. 242 F.3d. 412 (1st Circuit, 2001).

Mediation Makes Sense But It’s Not For Everyone

Mediation Makes Sense But It’s Not For Everyone

The adversarial process applied to divorce and child custody is expensive. It costs a lot of money at a time when the parties should be conserving their financial resources. It costs a lot of emotional pain when the parties have already had enough pain. It leaves scars on the husband and wife but, more importantly, it leaves scars on the children. The difference between the adult scar and the child scar is that the child’s injury is magnified by a frustration of his or her developmental needs at the time.

For example, a very young child may need physical nurturance and safety more than anything else and much more than a twelve year old. However, if the parents are embroiled in an adversarial divorce, then these needs may be largely unmet or met in an excessive and bizarre fashion. The critical issue is that the “developmental window”, during which meeting or not meeting these needs is accomplished, does not remain open forever. The child passes through this stage and appears to have weathered the parents’ problems but, in fact, the child has not weathered these problems and his or her developmental trajectory will be changed forever. The effects of this change may be latent and may not appear until the teenage years or adulthood and probably will never be properly connected to the parental strife but the connection is there and will be obvious for all with the courage and perspicacity to look and see.

Contrast this to the plight of the teenage child of divorcing parents. His or her needs are very different and, for example, may reflect a struggle for autonomy and independence. One or both warring parent may need to lean or depend on this youngster, perhaps by discussing parental problems, and the teenager is pressed into service as a so-called parental child, i.e., the child who takes care of the parent’s needs. Children do not have to be asked to assume the role of parental child. In many cases they sense what is needed and respond accordingly. Never having resolved issues relating to independence and autonomy, this teenager may be the one who grows up to be excessively dependent or excessively independent such that adult relationships are problematic.

The bottom line is that the developmental needs of children cannot be put on a shelf until the parents finish fighting with one another. Children’s needs must be met within a reasonable time of their emergence.

If divorcing parents are not swayed by the needs of their children, then they might be influenced by their own financial and emotional needs. Divorce law has developed to the point that there are not many unknowns about who will get what asset or how much alimony will be paid. After one or two sessions with a client, I usually provide a comprehensive estimate of how the case will eventually settle. Some lawyers seem to not do this or to do it very poorly but, I would imagine that most competent attorneys would come to approximately the same point.

If the net assets in a case are $1,000,000.00 and the lawyers on each side differ in their allocations by 10%, then there is $100,000.00 at stake. A 50/50 division of this difference would yield $50,000.00 to each party. If one lawyer is particularly astute and effective, her client might wind up with $65,000.00. In this zero-sum game the other party would wind up with $35,000.00. Now, was it worth paying an attorney between $200 and $400 per hour (that’s $400 to $800 per hour for the couple), in order to wind up with a $15,000 victory? And what about the “loser”? Was the loss worth it?

In the meantime, while you are damaging your children and dissipating your assets, you are not getting any younger and your life is on hold in every conceivable way. Wouldn’t it be better for you and for those you care about to find a problem solving solution that had fewer negative side effects?

This is where I believe that mediation can help. I suppose some may feel that aspiring to limit the negativity and injury in divorce is “unrealistic” and that parties are “irrational” and not susceptible to the mediation intervention. I agree that resolution of an important and emotionally charged relationship can be difficult, especially because of the influence of factors and feelings that are not readily accessible to the parties. Launching into a mediation without dealing with these preliminary issues can have catastrophic results. The mediator has to be attuned to the varieties and levels of the mediation dynamics and use these to work toward a resolution. For example, I cannot claim that there is strong scientific evidence that mediation is less expensive than the adversarial process. This issue has not been studied in a satisfactory manner. However, it is common sense that parties working on a divorce resolution with one professional would incur less expense than parties who are paying two separate attorneys.

A successful meditation usually involves the parties retaining a separate attorney to review the memorandum of understanding, but this typically occurs at the end of the process and costs a nominal amount.