Web-only Feature

Web-only Feature

Divorce and Alternative Dispute Resolution

Expanding Roles Outside the Courtroom and Managed Care

Internet Editor’s Note: Dr. Jeffrey Zimmerman is Board Certified in Clinical Psychology and has been trained as a Collaborative Divorce Mental Health Professional and as a mediator. Read more about and from Dr. Zimmerman by visiting his websites: The Practice Institute and Jeff Zimmerman, Ph.D.

Psychotherapists are often called on to help families of divorce. It can be to help a couple peacefully disentangle their relationship or help a child cope with the changes in the family. While the courts try to help children and families of divorce, they are limited by statute, the utility of custody evaluations, and the complex needs of the divorced family that persist well beyond the legal termination of a marriage.

As such, psychotherapists are in a unique position to help families of divorce; while they may not perform traditional psychotherapy, they are able to be quite therapeutic as they deal with clients experiencing the confusion, anger, fear, sadness and uncertainty of the divorce process. This requires the use of the therapist’s skills in active listening, communication, empathy, interpretation, conflict resolution, and problem-solving.

Clinicians serving in these roles also work with parents, children, and attorneys. Each “client” presents with their own unique challenges. For example, parents may present with psychiatric disorders and personality traits that make their behavior challenging and require the skills of an accomplished clinician. At times, the conflict can be between parents, requiring mediation and communication interventions. At other times, attorneys may become part of the conflict in the system as they engage in adversarial interactions. Recognizing that families are part of larger social system with diverse cultural and values-based interpretations and experiences around divorce is imperative. Here again, the skills of the psychotherapy clinician come into play.

In essence, through the myriad ways of involvement and various roles, the clinician is able to provide a safe holding environment for the family during a time of transition and disequilibrium.

Divorce cases can be gratifying and demanding, and call on the clinician to use many different skill sets. Yet, there are opportunities to expand the use of these skill sets outside the traditional roles of psychotherapy to help families transition from marriage to divorce and from one home to two. This article will describe four emerging roles that can be outside the courts (if the therapist, clients and at times the court agree the clinician will not testify) and outside of managed care (as the therapist is not serving in the role of diagnosing and treating a person with a psychiatric disorder).

The four roles discussed below all require special training and mentoring so that one’s psychotherapy skills can be successfully utilized. They do not involve the traditional intake and diagnostic assessment but rather have the clinician serve in the role of a consultant to the parents and other divorce professionals involved in the case.

As you read each role you can see the shifts in focus and role as well as the unique professional challenges to the psychotherapist.

Mediation of Parenting Plans

The process

Parents still in the process of divorce are often referred by attorneys to develop the terms and structure of the parenting plan agreement.

The role of the therapist

When serving in this role as mediator, the therapist most often works with both parents together to help them make their own decisions about the schedule, rather than have it imposed by the Court. The clinician has to be able to balance the impact of emotional factors and need for such discussion, with the need to develop a concrete and specific plan. The terms agreed to through the mediation may be incorporated into the divorce agreement drafted by an attorney mediator (who might be working on the financial elements of the divorce) or by litigation counsel who are seeking to settle the case.

The focus:

Mediating the parenting plan is more than simply creating a calendar. There are multiple aspects to the role of mediator including:

  • Helping parents define the fundamental concepts related to their post-divorce family lifestyle. This often involves addressing how parents can modify the schedule, how they will communicate with one another and the children, whether they can be at children’s events regardless of the schedule, how they will make major parenting decisions, and what they will do when they cannot agree.
  • Providing consultation and psychoeducation to parents around how they might inform the children about the divorce and how to spot signs of adjustment difficulties.
  • Helping parents navigate through the difficult discussions by being attentive to the process and helping them recognize and engage in productive child-focused discussion.

The challenges:

It is important, and at times difficult, to maintain a position of neutrality. There are many subtleties to this process and it is easy for one or both clients to perceive that the mediator is siding with the other parent. Additionally, the clients, and possibly their attorneys may take firm positions that their views have to be adopted and are in the best interests of their children.

As a mediator one may have to contend with helping parents examine competing factors such as the need for a young child to form a stable attachment with at least one parent and the need for that child to have reasonable access to both parents. Many times the work is also impacted by the psychological meaning a parent places on their time with the child and what it means if they have less time with the children compared to the other parent. Helping parents make decisions that are not just based on their pre-formed judgments and positions can be particularly challenging.

Collaborative Divorce

The process

Parents beginning the divorce process can elect to avoid litigation and instead commit to the non-adversarial process called Collaborative Divorce. While attorneys represent them, there is often a commitment not to represent the parents in litigation if the process breaks down (i.e. the “disqualification clause”). This, at times controversial concept is one of the defining features of the collaborative process. Full disclosure and transparency are hallmarks of the process, as is respect for each other’s views and opinions and concerns.

The role of the therapist

The mental health professional works with parents, their attorneys, financial professionals, and at times other mental health professionals who serve on the team to help the parents build the entire divorce agreement (i.e., parenting plan and financial arrangements).

The focus:

There are multiple roles for the mental health professional who is part of the collaborative divorce team. These include:

  • Facilitating team meetings with parents, attorneys and at times a financial professional.
  • Coaching one or both parents so that their behavior and emotional reactions can be as healthy as possible.
  • Mediating the parenting plan.
  • Presenting the experiences and concerns of the children to the parents and professionals either by speaking in general psychoeducational terms or after meeting with the children to better understand their experiences, concerns and reactions to what is happening in their family.
  • Consulting with the other divorce professionals about approaches that are likely to be most fruitful in having the expected difficult conversations inherent in the process.
  • Consulting to the team about the family and marital dynamics that may need to be addressed in order to have productive meetings.

The challenges:

There may be 5-8 or more people in a meeting, all with different backgrounds, opinions and experiences of the processes that are happening both in and out of the meetings. The therapist serving in this role needs to be able to manage these relationships and experiences simultaneously (in all combinations and permutations) while also managing one’s own reaction to the process. At the same time, one needs to be aware of the importance of balancing process with the need for the group (or team) to make concrete decisions leading to the finalization of a divorce agreement.

Co-Parent Counseling

The process

This lesser known role is designed to help reduce parental conflict by teaching parents the skills needed to co-parent effectively.

The role of the therapist

This role requires the clinician to be active, involved and instructive while at the same time setting limits on behavior that interferes with productive communication (e.g., blameful, hostile comments). The co-parent counselor is focused on helping parents develop child-focused communication protocols and address the needs of their child, making co-parenting decisions and building an infrastructure for moving forward.

Often a business metaphor is used, likening parents to a Board of Directors that may need to make a decision even if there is not full agreement. The role of parents is distinguished from that of former spouses. This process can begin before or after the divorce is finalized.

The focus:

When serving in this role, the parents’ behavior and process of communication is routinely a major point of focus even beyond the content or issues brought up by the parents. The co-parenting counselor focuses on resolving the issues at hand, and teaching the parents communication and decision-making skills to help them avoid unnecessary conflict. The role of the co-parenting counselor role is varied and includes:

  • Developing a parenting communication infrastructure where the parents are taught to communicate in a way that is child-focused, business-like and not blameful.
  • Mediating the parenting plan.
  • Making medical, academic, social and religious decisions.
  • Setting co-parenting policies around discipline, child/parent communication, and new significant others.
  • Reducing parental conflict.

The challenges:

This work can be extremely challenging as the clinician meets with both parents at the same time and tries to have a positive relationship with each parent, while the parents often have a hostile relationship with one another. This role often draws on the clinician’s skill to balance empathy, with limit-setting, psychoeducation, and mediation.

Parent Coordination

The Process

The therapist works with parents who are most often already divorced.

The Role of the Therapist

The psychotherapist serving in this role may meet with the parents together or alone concentrating on reducing conflict by ending disputes regarding specific issues (rather than on skill-building). The Parent Coordinator works on the issues that arise by mediating a decision and at other times being authorized to make a binding recommendation that can only be undone by the parents returning to court.

The focus:

This work is very solution-focused as the Parenting Coordinator seeks to help parents decide and then implement action plans consistent with the divorce agreement and orders of the court. Often the issues that arise relate to:

  • Scheduling
  • Medical decisions
  • Extra-curricular activities
  • Educational needs
  • Planning around life-cycle events and milestones
  • Religious education 

While mediation skills coupled with a good understanding of developmental needs of children are important in this role, the Parent Coordinator also has to be able to deal effectively with parents who may be well ensconced in the legal process, continuing aggressively with post-divorce litigation.

The challenges:

In some ways the Parent Coordinator can be in a similar position to that of the judge. Parents and attorneys (who often are still involved) may lobby the Parent Coordinator to support their position. The Parent Coordinator can often experience significant pressure and challenges to one’s competence when a decision is made that does not support a parent’s position.

Ethical Considerations

When serving in any of the above roles the ethical demands on the therapist are many. It is important to remain vigilant and take care to avoid mishaps. Some important areas of consideration are as follows:

  • Scope of Practice: Be sure to have the training and experience specific to the practice role. Use mentors and get case consultation, even if you have plenty of experience in the role.
  • Multi-Cultural Competence: The complexion of today’s family is changing. Be sure to understand the cultural and social influences of your clients related to divorce and the structuring of the post-divorce family. Religious views of marriage, developmental factors (of children and parents), and the ever-changing structure of today’s family are just some of the competencies the therapist functioning in these roles needs to have when working with the diversity of families who may be referred.
  • Informed Consent: Confidentiality and the role of the professional regarding court and testifying need to be carefully spelled out in writing in the first meeting (if not on the first contact telephone call).
  • Avoiding Casual Diagnoses: It can be tempting to rely on instinct and the comments of other professionals about the parents. However, it is inappropriate to offer a professional opinion without having done a clinical assessment to establish the basis for that opinion.
  • Self-care: These cases can be quite demanding. Self-care is important to maintain your resilience and deal with counter-transference issues that can impact your judgment and relationships with the parents as well as other professionals.
  • Avoid the Practice of Law: While therapists can document the terms of a parenting plan, writing legal agreements are not within the scope of our training and practice (unless one specifically is admitted to the bar in one’s jurisdiction).

Summary

These emerging roles can provide a chance to make a therapeutic difference in a unique way. However, what is sorely needed is more applied research that helps guide the courts and divorce professionals in discerning which approaches best fit prospective parents in order to achieve the best outcomes.

This work can be very gratifying. It gives the therapist a chance to really be an influential part of the system as a family struggles with the challenges and impact of divorce. It enables the clinician to help children by helping parents avoid unnecessary conflict and, even though the marriage has come to an end, preserve a sense of family.

Cite This Article

Zimmerman, J. (2015, January). Divorce and alternative dispute resolution: Expanding roles outside the courtroom and managed care. [Web article]. Retrieved from http://www.societyforpsychotherapy.org/divorce-and-alternative-dispute-resolution-expanding-roles-outside-the-courtroom-and-managed-care

References

American Psychological Association. (2012, January). Guidelines for the Practice of Parenting Coordination. Retrieved from http://www.apa.org/practice/guidelines/parenting-coordination.pdf

Barnett, J. (2014). Distress, Therapist Burnout, Self-care, and the Promotion of Wellness for Psychotherapists and Trainees: Issues, Implications, and Recommendations. Retrieved from https://societyforpsychotherapy.org/distress-therapist-burnout-self-care-promotion-wellness-psychotherapists-trainees-issues-implications-recommendations/

Barnett, J., Zimmerman, J. & Walfish, S. (2014). The Ethics of Private Practice: A Practical Guide for Mental Health Clinicians. New York, NY: Oxford University Press.

Friedman, G. & Himmelstein, J. (2009). Challenging Conflict: Mediation Through Understanding. American Bar Association.

Ricci, I. (1997). Mom’s House, Dad’s House: Making two homes for your child New York, NY: Fireside

Thayer, E., & Zimmerman, J. (2001). The Co-Parenting Survival Guide: Letting Go of Conflict After a Difficult Divorce.   Oakland, CA: New Harbinger Publications.

Website of the Association of Family and Conciliation Courts. Retrieved from www.afccnet.org

Website of the International Academy of Collaborative Professionals. Retrieved from https://www.collaborativepractice.com

Zimmerman, J., Hess, A.K, McGarrah, N., Benjamin, G.A.H., Ally, G.A., Gollan, J.K. and Kaser-Boyd, N. (2009). Ethical Issues in Divorce and Child Custody Cases: Navigating Through the Minefield. Journal of Professional Psychology: Research and Practice, 2009, 40, 539-549.

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