Separation and divorce have many dimensions: emotional, financial, legal, parenting and communication. ICP professionals Bernie Bolger (Mediator/Coach), Susan Warda (Lawyer), and Simeon Levin (Financial Advisor) discuss how bringing their different expertise together benefits families going through separation and divorce.
(HOST) I’m Wallace Long, welcome to Collaborative Conversations, a podcast that looks into the Interdisciplinary Collaborative Practice approach for separating couples. In this episode, you’ll hear how the ICP process works and how it differs from traditional divorce approaches, such as negotiation and litigation. You’ll hear from three professionals who explain their roles and let us know why they see the ICP process as being a better way to separate. ICP is a process where in conjunction with each party’s lawyer, couples work alongside professionals who bring the skills required to resolve each family’s unique situation in an efficient, respectful and dignified way.
Joining me today, are three experienced professionals, Coach BERNIE BOLGER, Lawyer, SUSAN WARDA, and Financial Neutral, SIMEON LEVIN.
The Collaborative Conversations podcast is brought to you by the Australian Association of Collaborative Professionals.
Bernie, Susan, Simeon welcome to the Collaborative Conversations.
(BERNIE, SUSAN, SIMEON) Thanks.
(HOST) Thanks for joining us. I’m looking forward to hearing more about Collaborative Practice today and your roles within the process. Firstly, I want to start by looking at the benefits of using the ICP process for separating couples. Bernie you’re an ICP Coach, what benefits do you see?
(BERNIE) I think one of the things that comes to mind straight away is the fact at the end of day when you separate, there is a legal part to that whole process, but within that legal process, people are having their own emotional journey to go on. They’re also having to come to terms with a different financial sense of security. And so, working with people in a team, people who are experts in the financial area, people who are experts in the emotion or mental health field, as well as your collaboratively trained lawyers, we can give families a scaffold in which they can work, and be assured that they actually have the people that they need to be present when and where they want them.
(HOST) That’s an interesting point you make Bernie about the collaborative team working for the family during a period when there’s a lot of change in their lives. Underlying this as you said, is a legal process that has to be navigated. Susan, from a legal perspective what is the ICP experience like for separating couples?
(SUSAN) For my part, I face a couple who have just gone through that emotional trauma of a separation, and they come to see you. Often it’s their first encounter for many people with a lawyer that engaging in an ICP process allows them two separate with decency and dignity. So that they can both get through what will be for many the most stressful experience they’re going to have in their lives, in a way that allows the next chapter, particularly if they have to continue seeing each other because they have children, in a more dignified way than what the alternative negotiation pathway or litigation may lead to. So I think rather than embarking on a process that involves court, that involves letter writing in a lawyer’s language rather than the language that the couple would ordinarily use to communicate with each other, ICP allows them an option where they are able to do all of that and have more control of how the separation unfolds, and what happens for each of them in their future and for their families.
(HOST) Simeon, Susan mentioned ICP being a more dignified way to separate where couples have more control over their futures. Are these the same benefits you see when it comes to the finances?
(SIMEON) I think one of the main benefit off the process is that families get to really have a say in designing an outcome. So rather than giving it to a judge on the day to make a call about financial separation as an example, it’s the family unit that really gets to drive the outcomes that they are looking to achieve for the family unit as a whole. And I think the benefit of including a group of professional people who all have different expertise, training, skills and backgrounds. The option of being able to opt those people into the process to assist in the design of an outcome that’s really suited to them is a huge benefit of using the approach.
(HOST) From what the three of you are saying, there seems to be one clear benefit for families in using the ICP process, that being that they have a greater say in their futures, and in fact the family unit drives the outcomes that they want to see. Susan, how do professionals work with families to achieve this?
(SUSAN) At the outset, your team, being your lawyer, your coach, your financial neutral if it’s a matter that involves financial aspects meet and identify very quickly, right at the outset, the needs of this family and the concerns that are there for this couple, and the best way to approach them. So it’s not a one size fits all, its uniquely tailored, and we can then as a team, set up scaffolding to support couple, or the family in the next part off this process, once we actually start the collaborations and the six way meeting, or the four way meeting because every meeting is different depending on who is needed for the purpose of what is being discussed. I think being able to set up that support very quickly as a lawyer, tapping into the other still sets that I don’t have and my opposing lawyer wouldn’t have. But we get that then through the person that joins us as a financial neutral, or as our divorce coach, and we’re able to then give the couple all of the necessary framework to help them work together and come up with a solution.
(HOST) Bernie, Susan mentioned that early on in the process, the team identifies the needs and concerns of the family. As a coach, how do you ensure all voices are heard during the ICP process?
(BERNIE) Well this is a really special part off the process and one of the ways in which is totally different from any other version of separating. Every client is going to have different needs as they separate, and different concerns. You know, some people it might be about financial security, they might have stepped out of the workforce, and have not earned their own money for years. For others, they might actually have been the primary breadwinner and therefore might not have developed the same relationship with their children. So their fear might be around, how am I going to manage to be able to parent my children and keep down the job that I have and support two households. And so in the ICP process, all those fears and concerns are voiced, and I, as a coach, can help clients articulate their own concerns. And the beauty of it is that both lawyers get to hear the concerns and the needs of both clients, and then when we can bring the financial neutral in or even the child consultant in, we can come up with options based on the advice of the financial neutral or the child expert that can address those concerns. So it kind of levels the playing field. There isn’t the space for one person concerns to be minimised or diminished or, you know, kind of the eye roll or the, for God’s sake, that just makes sense. Everyone is given equal time to speak, to voice the concerns and voice the fears. And one of the really, really powerful parts is when I ask my clients, what keeps you awake at night? Because at the end of the day, fear drives behaviour, fear drives decision making, and if we can address the fears, if we can address the concerns, then we hopefully can work out options that are going to honour everyone’s values, everyone’s concerns, everyone’s needs and they can, as Susan said before, step into the next part of their lives with respect and dignity.
(HOST) Simeon, Bernie mentioned the importance of hearing and addressing the fears and concerns of separating couples. When it comes to the finances, what are people’s fears and concerns there?
(SIMEON) In my experience most clients really just want to know that they are going to be okay financially, both now and in future. I often work with people who have a full range of questions, most of which are grounded in fear. Questions like; Will we be able to afford to buy separate homes? If not, should one of us or both of us consider renting? And what are the implications of that? Can we afford to cover living costs across two separate households now? Will we still be able to afford to send our kids to the schools that have been attending or the schools that we plan to send them to in the future? And there is often the question, Will there be enough money at the end of the day so we can comfortably retire at some point in the future? Those kinds of questions are very hard to glean from a balance sheet, which is a really a one dimensional piece of paper that assumes that, client A might take a certain lot of assets and client B might walk away with another set of assets. I think people often become positional because they become fixated on what they think they need to survive and perhaps thrive into the future. But the work that I do with clients is really about providing clients with clarity. That’s really about providing them with information, education, support and guidance around actual financial outcomes for a particular property settlement. We do this using a wonderful piece of software that actually allows us to bring the balance sheet to life. The software not only will look at a client’s nett assets and liability position, which is really a review of the balance sheet, but it also does a very important thing in that it demonstrates or show clients what we call cash flow, which really is the stuff that keep people up at night. So the cash flows can be shown on a year in, year out basis for as long as we want into the future, seeing expected inflows, working income, child support payments, centre link benefits etc.
It will show them their outflow, their living expenses, their debt repayments, the tax they might be liable for, or cost of education. And it will give us a very good view of whether a client is in what we call a surplus position or a deficit position. When you’re in a surplus position obviously there is not too much concern from a financial perspective, but when you’re in a deficit position, we need to make some choices and decisions around how we fix that deficit or close that deficit on a year by year basis. And I guess that’s where having a financial neutral is important in the process because it allows us to explore the various opportunities to kind of fix that deficit position.
(HOST) Thanks, Simeon. Susan, we’re hearing the many benefits of ICP. What are the differences between ICP and other forms of divorce for yourself, the team of professionals and the families involved?
(SUSAN) I would summarise the differences as being these Wallace. Collaborative lawyers are trained specifically to undertake work through a collaborative process. We acquire a set of skills that is very different and often very foreign to those of us who have for many years had a practice that involved a significant amount of litigation. And it’s also quite different again from the traditional negotiation, dispute resolution methods that most family lawyers are very good at embarking upon in the absence of collaboration. One of the things that’s very different is all of our instructions come from our client, essentially in the presence of everyone else in your team, whether that’s just with the two parties and the couple and their lawyers, or it may be a meeting that also involves a financial neutral or the coach or six of us, and that is a very different experience for lawyers compared to what we would do sitting in our office, sending a letter that we have drafted to a lawyer on the opposing side. So we are all hearing the same story, but not only from our client, we hear it from the perspective of the other client. By the end of those first few meetings, you get a very good perspective of what they both are concerned about, what they’re both fearful of, and what they hope to achieve, because you get to a stage where they are able through this process to share with you what they’d like a future to look like for them and they’ve shared with you obviously theirs concerns. That doesn’t mean that there are no disputes in their history in some of the factual matters, but the process allows for us to obtain the relevant material, obtain the paperwork necessary to then clarify some of those issues that need clarifying, and sometimes if we don’t have the relevant information, a couple can between themselves with the assistance of the relevant team members agree on a pathway that’s often not available to them in a conventional framework if you were in a court timeline and following the set of rules that the court prescribed. The other thing about ICP and when I discuss it with the clients, they’re curious to know if at the end of the process; will I have a legally binding settlement? And you would have exactly the same suite of settlement documents prepared at the end of this process, as you would if you’d embarked upon traditional negotiations to get there, or a set of orders that the family court may issue at the end of a trial if you haven’t resolved an agreement. So you end up with a legally binding agreement that is enforceable, and the two lawyers work with the couple as to what are the appropriate documents for them to have drafted to reflect the settlements they have reached.
But unlike going to court, the collaborative process is such that we were very differently with our opposing lawyer because it is just simply so much quicker, even in the slowest collaborative matter you know that you can say to people the three year delay, but anyone who is reading what’s happening in the newspapers and being reported about the family court for a long time now is aware of, and that is, we have to say the alternative to this if you want embark on litigation in the family court, particularly in Sydney, you can expect a three year wait before you get finality. And sadly, in some cases it is actually even longer than three years. So that makes it a very different experience for working with the solicitor on the other side, because you are moving, things more quickly. That often also means that a couple leaves this process having achieved an outcome in a cost effective way that is just not available to them if they sign up to litigation because the family court requires documents and compliance with rules and procedures that no doubt increased costs. So it’s a very different experience for the lawyers in working in an interdisciplinary collaborative practice for all of those reasons
(HOST) Susan, I’m taking out from what you’ve said, that ICP is a family and future focused, cost effective process which is delivered in a shorter time frame and with the same legally binding documents as other processes. Are there any situations where you wouldn’t be recommending couples use the ICP approach?
(SUSAN) Can’t think of any that spring to mind. Because we have now in Australia been working in this interdisciplinary model for many years we have been able to stand back and have a look at how it has worked for couples from different backgrounds, with different issues, different family dynamic and different disputes. And I can’t imagine a situation anymore where I would not be recommending ICP. A number of clients do ask me about their concern, what if there isn’t disclosure made by their other spouse that they no longer trust about certain assets. And I always remind them that at the end of the process, if you reach a settlement it is no different to reaching a settlement through traditional negotiations or a mediation in that you are signing documents that are legally binding and you have the same rights available to you to essentially reopen a settlement and go to court in the future, if someone has withheld significant information and there has been a fraud. So that usually gives people a lot of comfort when they realise that they are both obligated to provide the same disclosure and that their obligations are as onerous I guess, as they would have seen if they were using a different method to resolve a property dispute.
(HOST) The Australian Institute of Family Studies Report that just under 50% of divorces involved children under the age of 18 years. Bernie, can you explain how the parenting discussions are managed within the ICP process?
(BERNIE) Because we do parenting matters within a collaborative process, but we don’t always need to have the lawyers involved in those parenting discussions, and that is why we say we can really tailor each process to each individual family’s needs. And so, depending on the ages of the children, different elements are going to have to be dealt with. If you’re dealing with a family that has got a two year old and a four year old, they’re going to be very different conversations you’re going to be having with the parents to those who might have teenagers 12 years, 14 or even 16 years of age. And so that’s why we can bring in people maybe for some psycho education, because sometimes we’ve got to break the news to one of the parents. You know, maybe the non-primary carer that a two year old, it mightn’t be appropriate, and in most cases not, that there will be equal share care at the age of two. But we can work towards that. That sometimes it’s not being imposed as being infringing on the rights of the parents. As I talk to parents, I would say in actual fact, as parents, you don’t have any rights, your children have all the rights and you have all the responsibility. So being able to have a very impactful conversation with parents, understanding people’s fears about not having as much time with their children, and in any kind of separation you know, if the child is going to be spending time, even one right with a parent, that means the other parent is going to not have the child or the children for that particular night. And so there’s a grieving process that we have to work with, with the parents.
There’s an education process we have to work with and also understanding that as children go through their own grieving process of the breakdown of family, we have to maybe encourage parents to allow their children to see a psychologist for a little space of time, so they have their own independent space. We talk to the parents about the impact of conflict on the parents because a lot of parents might say, stay together for the sake of the children and being able to have that conversation, saying that you are where you are, but we’ve got to move through this for the sake of the children. We cannot expose them to conflict for any longer. Let’s get to a solution whereby the kids feel safe in both of your houses and as kids get older, those different needs are going to be addressed. And so I think, knowing that we’re in this process where we all have signed up to getting the best outcome for that family as a whole, not so that it’s going to be mom centric, dad centric or any parent centric. It’s actually about the children, and, as I say, we can even bring in child specialists where they actually speak to the children. And that’s where we say we give the children a voice, but not a choice. A child inclusive practitioner can actually speak to the children and then report back to the parents what they have heard. Where the children feel secure, where they feel sad, what it’s like when they’re going between two houses, if the two homes are now very different and a very different world. And so this process, because of such a high degree of trust between the clients on the professionals and you know that your profession isn’t trying to advocate for one of you against the other, we come to a solution in most cases that actually works for everyone, and the parents step back and put the children in the centre of all decisions.
(HOST) Simeon, Bernie mentioned post-divorce children are likely to be living between two homes. How do you assist families to manage the immediate and future financial needs of their children?
(SIMEON) I think one of the things that is often overlooked is the basic skill around preparing a budget. You know kids are costly. I think it’s a really important thing to sit down, with both clients and prepare a budget for their individual household, and to do that so that you’re separating your personal expenditure out from the expenditure in relation to the kids. And that’s important for a number of reasons. It helps with regard to understanding what it costs to manage and to keep your children clothed and educated and with a roof over their heads and food on the table. You know, it’s a great conversation, and it really does help to kind of clarify for example, when you start talking about things like child support payments, what those child support payments might need to look like. From a longer term perspective we often get involved in modelling things like education expenses, particularly where the plan is to send kids to private schools. I worked with a couple who were both on the same page about sending their children to private schools, and in that matter, what we did is we actually set aside a lump sum which was almost excluded from the pool of assets, which was earmarked for education expenses at some point in the future. And obviously through the modelling work that I did, we were able to work out exactly how much we needed to set aside for that purpose.
(HOST) Susan, also considering the immediate and longer term needs of children, do you see the ICP process as being a better option for children and their parents.
(SUSAN) Yes, I do, as a process that allows with parents who know the children or their child better than anyone else, have a lot more control over what is in their child’s best interests. And the process also allows us to work much more creatively, to come up with options in the short term for the children and the family, and then the long term.
And if you’re in a family court, a judge can’t ever possibly know the child or the children as well as the parents when they are reading a set of documents prepared by lawyers or hearing evidence in the context of a trial, but I think ICP certainly allows parents to work together, although separated with the assistance of the relevant team members to come up with a solution that they both ultimately agree, is what’s going to be best for their child. And it’s fluid in some family arrangements. And it allows families to do things a bit differently if their circumstances are such where they need to make changes for their children. And I also think it works really well for those children who have special needs because there’s a number of other professionals who are often involved with those children. And the parents can then rely on those professionals who are supporting their children and bring back that information to the team so that a proposal, and a plan and pathway is prepared for the children taking all of those things into account.
(HOST) Bernie, Susan and Simeon thanks for sharing your insights into Interdisciplinary Collaborative Practice. Final question to you all. Do you have an outcome that you see could only have been achieved through the ICP process? Bernie, can I start with you?
(BERNIE) As I said before, one of the kind of tenants of the whole process is around the idea of we draw out each party’s needs and concerns. And a lot of that can be around maintaining my stability for the kids as possible during what is, even in the best of separations it’s a very difficult time. And so it might be that you have a child who’s just starting or finishing off year 11 going into year 12. And so having to sell the family home in the middle of year 12 exams might be very disruptive. So through the ICP process, both parents can actually decide together. Well, let’s keep the family home, let’s keep the kids stable until they’ve gotten through the most important exams in today’s society and we can look at maybe selling the house in the first year, post that big exam. Normally in a different method, the parents are set against each other so much that they forget about the kids. And it is about, well, you’re going to get the advantage of living in the family home, and I’m going to be in the one bedroom bedsit down the road and instead the emphasis is on, what can we do together as parents to make sure that our children do not suffer from our separation?
So there is a classic example of where the parents have worked together, brought in the financial advisor who can model the costs of running two separate homes for a time until they’re actually in a position to sell the home. He does that work, look to bring in the services of a child inclusive practitioner. Talk to the kids about how important it is to say remain in the family home, test their anxiety levels, their sense of security.
And so the whole team works together with the lawyers provide a solution that actually makes everyone feel better. And they can look back at this part of their life, know that they haven’t disrupted their children’s dreams and hopes for the future.
(HOST) Simeon, do you have an example you can share?
(SIMEON) Part of the process is really about generating a whole range of different options. The idea is to use a whiteboard and to throw up a whole bunch of different ideas where we’re not talking about feasibility initially, but just to get some ideas and some thoughts on a page. Now out of those options, sometimes on initial reflection, they might be discounted. But it’s because the process allows that idea generation and allows both parties to get some ideas on a whiteboard. But I think you often have a great outcome from the process. I’m thinking about an example where we had a couple where he really wanted to retain the family home and we had a couple of options on a whiteboard, one of which was he would take a loan in order to pay out his ex-partner. The other was where he would lend some money from his parents in order to facilitate that. Now it was a combination of those options that eventuated for the couple, mainly because practically it wasn’t feasible for him to borrow the entire amount from a bank that he needed to pay out his ex-partner. It was a combination of those two options that really allowed him to retain the family home. He was the primary caregiver of their young daughter. She was given a pay-out, which reflected her contribution to the relationship. But at the same time, he managed to retain the family home, and it was only through that process of generating a bunch of options that I think we came to that conclusion and result for the client.
(HOST) Susan, do you have an outcome that you can share?
(SUSAN) Yes, indeed. What I want to touch on and Bernie gave an example of this is that the time lines are very different when you reach an agreement through the collaborative law process. It allows couples to do things a little bit differently because there isn’t that requirement of having to end the financial relationship. Whereas if you’re in a litigation in the family court, the court must make orders that ends that financial relationship. And I have had matters where couples decide that it is in the children’s best interest, that the house is not sold for a number of years. For example, of a recent matter of ours, the children were only in primary school, but there was an agreement that the transfer of the property would not occur until an HSC was completed by the second child, being the younger child. Now that is not an outcome that would have been possible in a different forum. The other thing that I’ve seen happen, and in fact, I was in a matter with Bernie where we were able to do this for a very significant business, and it was a family business. We were able to work with the accountant, the couple by trusted, and that is certainly not something that commonly occurs if you negotiate in a more traditional way, or if you’re in the family court, where people are really subject to the rules of the court, which require them to go and retain an expert that doesn’t know anything about the family dynamic of a business, yet has to step in and go through financial records and accounts. So that really assisted the couple in that process to be able to work with someone who had a very intimate and long standing understanding of how the business worked. So they’re a couple of examples I think, that bring to mind what we’ve been able to do.
(HOST) Bernie, Simeon and Susan thanks again for your time. If listeners want to get further information on ICP and also get in contact with each of you, how do they go about that?
(BERNIE) Because collaborative practice is one of my absolute passions and honestly, I think for 95% of the population who are separating it’s absolutely the way to go. If you go to my website The Mediation Collective https://mediationcollective.com.au you’ll find information on how the process work. But you can also go to the CPNSW website https://collabprofessionalsnsw.org.au and on that website there is a list off all the collaboratively trained professionals, lawyers, financial neutrals, coaches that can help you through this process. We also has well have now a national body, a national website. And so no matter what state you’re living in, you can go to the national website, the AACP https://www.collaborativeaustralia.com.au , and again you’ll find your list of collaboratively trained lawyers, financial neutrals, mental health professionals, child consultants.
And the really good thing about that is you know, it’s very much about building rapport with each of your professionals. So you can make a call, you can talk to a few different professionals and you will know when you’ve landed on the right one, because the collaborative process is all about relationships. It’s all about empathy, and it’s all about trust. So it’s trust between the team. It’s trust with your professionals that you can choose, and its trust in even the first professional you go to, trusting them to build a team around you. So each of our individual websites, the national website, and for me because I live in Sydney, the CPNSW website as well, all the information is there.
(HOST) Simeon, how come people find you?
(SIMEON) My details are also listed on the CPNSW website, as well as the AACP website.
(HOST) Susan, where can people find you?
(SUSAN) In addition to the same websites that Bernie has mentioned Mills Oakley website https://www.millsoakley.com.au , I have a plain English guide on collaborative family law, which is a good reminder of some of the key issues that Simeon, Bernie and I’ve discussed today. And my details are on the website along with that guide.
(HOST) Bernie, Susan and Simeon thank you for your time.
(BERNIE, SIMEON, SUSAN) Thanks. Been a pleasure. Thank you Wallace.