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ICP professionals Bernie Bolger (Coach) and Jamie Burreket (Lawyer) explain the options couples have when separating and the benefits of using an Interdisciplinary Collaborative Practice (ICP) approach. They discuss how couples can shape a solution that suits both their needs.
(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, I speak with ICP Professionals, lawyer, JAMIE BURREKET and coach, BERNIE BOLGER. You’ll hear about the options available to couples when separating, and in particular the ICP process and its benefits.
Interdisciplinary Collaborative Practice 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. The Collaborative Conversations podcast is brought to you by the Australian Association of Collaborative Professionals.
(HOST) Bernie and Jamie, welcome.
(JAMIE, BERNIE) Thank you.
(HOST) Bernie, what is first and foremost in the minds of couples who are separating?
(BERNIE) I think Wallace that’s a very, very big question. But if I were to think about a common theme and it’s one that drives behaviour, is fear. The three most traumatic things that happen in a person’s life; divorce, moving house and death. When people are separating, we are ticking two of those boxes. So I think fear drives behaviour and drives emotions.
And if we can deal with that, if we can get them to articulate what their fears are, what it is that’s keeping them awake at night and assure them, or reassure them that these fears will be addressed to the best of our ability, to the best of the team’s ability, I think we can calm people down and help them make more rational decisions.
(HOST) And Jamie, from your perspective.
(JAMIE) Yes Wallace, I think you know when you separate it’s one of the low points in your life, and you’re probably the least equipped to have to make some of the biggest decisions you’ve got to make. So you come at it in a very vulnerable position. And most of the people I see early on in this process have that fear that Bernie says, they’re very uncertain in relation to the future, and that drives the fear. So they’re looking very early on for some predictability, which is hard to give them. But you can often give them a process that will relieve some of that fear, anxiety and uncertainty and say, if we approach things in this particular way, you will get to an outcome that you can live with.
(HOST) Jamie, what are the various options available to couples when they are separating?
(JAMIE) Well, the most traditional one historically was, if you couldn’t work this out between yourselves across the kitchen table, you’d go and see a lawyer, and you’d access an adversarial environment like the Family Court of Australia or the Federal Circuit Court of Australia and deal with it that way. And 10, 15 years ago, we had the Rolls Royce of matrimonial courts in the world. It was a very efficient court, you could resolve a case, you know, within about 18 months, and it was relatively inexpensive.
But that’s become, in the last 15 years, an option that’s unavailable to most Australians. It’s incredibly expensive. The delays in a registry like in Sydney can go up to 5 years in delay, so the options have become quite broad. There’s a big smorgasbord from a traditional litigated case at one extreme, the kitchen table at the other. But in between, you’ve got mediation with lawyers, mediation without lawyers, roundtable discussions and, of course, what we’re here to talk about today, which is an Interdisciplinary Collaborative approach that’s a bit of a hybrid of all of those.
(HOST) Bernie, Jamie has outlined a range of options people have when separating. Why do people choose Interdisciplinary Collaborative Practice?
(BERNIE) I think it goes back to, you know, coupling what people are afraid of in a certain moment, but then trying to get them to look forward, post the actual trauma to what they want their life to look like when everything is said and done. For a lot of families, children are involved. And even though they might have separated from the father or mother of their children, they still have to live in a world where they’re going to co-parent for a long time. And so if they can go through a process where the children come out unscathed, you know unharmed where there’s still dignity and respect between the parents, that is, you know, the best of all solutions in a kind of a terrible world of separation and divorce. And so I think that is wanting the best for the mother or father of your child, wanting the best for your children, knowing the fact that as separated parents, you actually might be better parents than living in a toxic relationship, traditionally having stayed together for the sake of the children. So I think collaborative divorce allows people to step into the other person’s shoes, allows them to empathise with the other person’s, the other parent’s needs, concerns, wants, and try and come up with a solution whereby it’s a win-win situation, where everyone and especially the family as a whole, even though they might be separated, win.
(JAMIE) And I think people want these days more control over their lives. They don’t want to hand these problems over to a judge for making of an arbitrary decision that it tends to be a one size fits all approach when families are very dynamic and diverse and need lots of different solutions. And people want to have control of the process and maintain their dignity while they sort these issues out.
(HOST) Bernie, earlier you mentioned people’s fears when separating. How does the ICP approach find solutions to address these fears?
(BERNIE) If you talk about in, and I know this is very generic and very generalised, but if we say in Australia, we’ve got a family you know 2.5 kids, the dog, the picket fence, Mum and Dad or two mums, two dads. One is a stay at home parent, and one is not. And so immediately there is a financial imbalance. If one person has stepped out of the workforce and is not earning their own money, they’re very dependent on the income of the parent who is working. And their also can be an imbalance with regard to the relationship with the children. And so there is that fear as an am I going to lose out? I might have not have spent as much time with the children because I’m actually out working, paying off the mortgage or just putting food on the table. So in this kind of approach, we get to hear what people’s fears are. We get to hear what their needs are, and it is that whole idea that we can come up with solutions and there isn’t just one way to skin a cat.
There are many solutions to all these different problems. From alright, we realise that we’ve got a child who’s just about to embark on their HSC. What would it look like if we didn’t have to sell the family home? If we could actually just retain that family home for an extra 18 months so we can get our child through the HSC in a secure environment? That’s not something that normally would come into play when you’re doing it in the adversarial environment. Or it could be that, you know, you might have one parent who’s actually in the middle of retraining. And so it could be that you just keep the status quo for a few years while that parent finishes the retraining and then can go out into the world himself or herself independently, financially. So it’s just this approach looks at many different options to solve, you know what is basically separating of a family and separating of financial assets.
(HOST) Jamie, do you have examples of how the ICP approach has provided a better outcome for families?
(JAMIE) Well, the biggest better outcome is that the chances of you each respecting yourself, respecting each other, particularly of your co parents after you spent four years litigating and hundreds of thousands on legal fees is pretty low. So the biggest benefit of this process is that most of the separating couples I’ve seen have a respect for each other and themselves at the end of it, which doesn’t always happen in an adversarial arena. The second big benefit is they get a bespoke solution that really suits their needs. And it can be from taking a delayed property settlement over a period of time to permit a growing business to continue to be funded, to leaving people in their primary residence for the benefit of kids until they reach particular school age milestones. It can be negotiating the way in which kids spend time with their parents if they’re fly in, fly out workers or do other sort of shift work that changes all the time. It really gives them an opportunity to, together, with some help from professional shape, a solution that meets their needs. And so you go from that lose-lose environment of the litigate arena to a real win-win environment for both people, where they get a solution that ticks more boxes for them than I think any other method.
(BERNIE) It’s a classic story of the orange. And it is, if two people are fighting over an orange, what would be the obvious solution that people will go for? Well, obviously, if there’s one orange to people, you cut the orange in half. In the collaborative process, we ask questions. We kind of dig deeper. We don’t just jump to a solution. And even in therapy, before you give advice, you have to understand the problem. And so if you ask the two people, what do they actually want the orange for? and it turns out that one person wants the orange to make orange juice, and the other person wants the rind to put in a cake. It means that they actually both can have their objectives satisfied, fully, without having to compromise. And that’s the difference between compromise and collaborate. It is the fact that, ask the right questions and hopefully everyone wins. Win-win solution, not a win-lose solution.
(HOST) Jamie who is involved in the ICP process? And what does the process look like for separating couples?
(JAMIE) I describe it as having four essential elements. The first is that you meet in a series of successive meetings where you try to work these things out, face to face with some professionals in the room with you. It’s not about exchanging correspondence or swapping emails trying to work these issues out. It’s about sitting around the table and doing it in a structured way where everything that needs to be decided and everything that needs to be said happens in the room with your team present. So that’s the first big thing. The second big thing, particularly with the interdisciplinary model, is that it’s you and your lawyer, so you’re legally represented, and there are obvious benefits to that. But the real critical element is as a team you engage a coach, and that’s the role Bernie serves, and she’ll talk more about what a coach does. The benefit of that coach is that they really take everyone’s temperature at all points, keep the couple on track, keep the lawyers on track as well and stop them reverting to their adversarial behaviours and check in on everyone at every stage and keep the lines of communication open. The third big thing is that you all sign a contract about how you’re going to behave in these meetings and what’s very powerful from the lawyer’s point of view, is you contract that if you don’t resolve the matter in these series of round table meetings, you can’t use that lawyer to go and litigate your case. You know you’re really not got that option of saying in an easy fashion, this isn’t working for me, I’ll see you in court. That’s just not on the table. And then the final big powerful thing that Bernie will probably talk more about that you come up with solutions that meet your individual values. We don’t tend to come up with a solution and compare it with what a judge would do, or what 99% of the separating population would do. We really make you go through an exercise where we look at what are your values, and measure any solution against those.
(HOST) Jamie, you’ve mentioned ICP as an approach that includes each party’s lawyer and a coach. Are there any other professionals that are included in the process?
(JAMIE) That’s one of the big benefits in that we can then as a team, bring in people that we think will add to the discussion or add to the solutions. There’s a raft of them, but the most obvious ones we tend to bring in are, financial neutrals, who are financial planners, accountants or tax advisers who can come in and give a report about financial affairs to both of the parties at the same time and the rest of the team in a really neutral way. They could give advice to everyone at the same time. Similarly, we can bring in parenting specialists, particularly those that are child focused, to give advice to everyone in relation to what kids need at a particular developmental points in their life, and also even specialists who meet with the kids and then report back to the team in relation to how their kids are doing. And the real benefit of that Wallace is that instead of in an adversarial method, were off having these private conversations with these resources that you don’t share with the other side you’re bringing it all together into the one meeting, and everyone hears everything at the same time, and so you don’t tend to get those factual contest that you do in a traditional adversarial environment.
(HOST) Bernie, Jamie mentioned the coach has an essential role throughout the ICP process. Can you explain further the role of a coach?
(BERNIE) From the very outset, depending on how a couple came into the process, it might be one client goes to their lawyer, and the lawyer would suggest, maybe you are suitable for the collaborative process. Now, obviously, that lawyer is not going to meet the other person. So typically, I might get a call from a lawyer saying, I think we have a potential candidate for the collaborative process. It’ll be really good if you could meet with both people and do an intake and assess whether they actually are suitable for the process. There’s also, as well as Jamie alluded to, lawyers tend to, when we’re not sure of what to do, we tend to revert to form. This is a relatively new way of practising law in Australia, and so sometimes it just happens that lawyers will, without even intending to, they just become very much an advocate for their clients. And as a coach, it really is trying to build a team and keep the team on track and constantly remind everyone, the clients and the professionals in the room that we are actually trying to get the best outcome for the family as a whole. It’s not, if your client wins, mine loses. And so it’s a constant check in. The other thing that was really useful for the coach, because in a lot of cases, we do have a social science or mental health background. We’re trained, we develop trust with the clients very quickly and very easily. And so they might tell us some very relevant information that they might feel embarrassed to talk about to their lawyers. But this information is vital to the discussion or negotiation.
And so that means that both lawyers get to hear the same story so there might be information that’s relevant for one client that in a normal method they would they would never hear of it at all, and they would make their own assumptions as to why one person doesn’t like a particular outcome. And so the transparency, it’s up to the coach to make sure that everyone is hearing the same story, and is on the same page. And I think that is where our experience is. And if say, there is a financial literacy imbalance between the couples. And in many cases I’ve actually gone along to the meeting with the financial planner, financial neutral, where they’re modelling what life will look like post separation. Because I can act as that liaison between the person that might feel a little bit insecure about their lack of knowledge and the expertise of who they’re going to. I can form that bridge with people with that expert and then report back to the room as a whole. The same thing if we’re bringing in a parenting expert, I will be part of that process as well, that the parenting experts can report back to me and to the parents at the same time. So there always is that continuity no matter what meetings are going on, there is someone who is involved in every part of the process.
(HOST) Bernie, you mentioned parenting experts. What is it like for children whose parents are involved in the ICP process?
(BERNIE) I mean, there’s an awful lot of fear around the idea that you might lose contact with your children and these are obviously adult discussions, especially with children under a certain age. What we like to say is children should have a voice, but not a choice.
We don’t want children to have to make decisions or have to choose between parents, or where they’re going to live, or how they’re going to be. But what we can do is we can bring in very skilled practitioners who are used to talking with children who might just take a snapshot in time of where the children are at that moment in time. What their emotional temperature is. Are they afraid? Are they feeling and seeing a lot of conflict between their parents? Are they feeling maybe that they’re not seeing as much of one parent and they like? I mean, a lot of children, when they’re asked, they actually do want to see both parents. But obviously the contact that a child of two might have with both parents is totally different from the contact a child of the age of 14. So bringing someone into the process, a bit of psycho education around child’s theory, child attachment, is really powerful. Being able to give messages to both parents that are coming from the children is also very powerful because it’s sometimes the wakeup call for parents as an, oh, this is what my children are feeling at this moment in time, and I didn’t realise that. You know it can be incredibly powerful and cause huge shifts in the way people are actually negotiating. It takes the focus off the parents themselves and puts it firmly onto the needs of the children. Because at the end of the day, the children are the vulnerable people in these separations.
(HOST) Jamie, from what you and Bernie have said, there appears to be many upsides in using an Interdisciplinary Collaborative Practise approach. Is it suitable for all separating couples?
(JAMIE) Not for everyone. It’s a robust model, and for most people it will work and it will work very well. But where relationships are incredibly high conflict, and there is a real imbalance in both parties ability to collaborate and negotiate, it’s not going to work. Where there are significant child protection issues at play that create hard barriers that you can’t really negotiate around because there are protections that need to be in place, Interdisciplinary Collaborative Practice is going to be harder to be successful. So it’s not for every single matter that walks through a family lawyer’s office or walks through a Bernie’s office. There are cases that just aren’t going to be suitable.
(BERNIE) I would say Wallace, just to add to that my big test for people, that’s whether they can collaborate or not, is the ability to emphasise. Because what we’re really doing is asking people to set aside the hurt, their own hurt and work together for the sake of the children and each other’s best outcome. And you know, when you’re going through a break up there’s an awful lot of grief, but grief tends to manifest on the primary emotions, such as anger. So we’re asking people to set aside their hurt, step into their partner’s shoes, understand where their fear is coming from, not automatically assume that it’s coming from a place of greed, but actually a place of maybe financial insecurity or just insecurity. So if it is when I talk to people initially in that assessment, if I ask certain questions, what I’m actually doing is testing for their ability to empathise with the other person’s position and allowing that person, maybe to catch up with them in the process.
If they can’t do that, it’s going to be very, very hard to collaborate and go the full distance. Getting in a room with your ex-partner and your lawyers and a coach, and maybe a financial advisor and whoever else, and kind of be in a good place and remain within your integrity and in a respectful place that’s tough, it’s tough. Interdisciplinary Collaborative Practice is great when it works, but there can be some very tough emotional moments in there and it’s the ability to self-regulate emotionally is going to be one of the tests.
(HOST) Jamie, what are the typical time frames for ICP compared to other approaches?
(JAMIE) Well, it’s certainly much quicker than an adversarial approach at the moment, which in some states of Australia runs to a minimum of 3 to 4 years once you start a court case, let alone the 12 months you might have spent beforehand trying to resolve this without using a judicial process. You can achieve things faster sometimes, negotiating between yourselves, but you’re not probably going to get as a rich solution without using the team structure and the collaborative practice. So when you balance that in, it’s a relatively quick process to resolve issues that can sometimes run for months and years in any of the other processes.
(BERNIE) And I would also add, that the huge advantage I think over just a straight mediation would be, and especially the mediation that doesn’t have lawyers involved, you’re going to come up with options. Everyone is going along on the journey.
So if you have a mediator and just the two clients in the room and we work through it and come up with an option, and then the clients go out there to their respective lawyers and the lawyers haven’t been on the journey, they haven’t heard the stories, the background and so they’re asking the questions. Why did you agree to this? In the collaborative process, we can get results or resolutions that just would not be normal. You know, they would not be commonly thought of, unless everyone is in the room and can see the sense and can see the emotional drivers behind it. And I think it creates a spirit of generosity in the room, that doesn’t happen normally when you’re thinking about separation. It’s nearly counterintuitive. I think it elevates people’s dignity, people’s respect and people’s willingness to work together.
(HOST) Bernie and Jamie, thanks for sharing your insights into the ICP process. ICP appears to give couples more control during separation, as well as the ability to shape a solution that meets their specific needs. Bernie, last question. If there’s one message you would have for separating couples as to why they should consider ICP, what would it be?
(BERNIE) I would say it is a truly special place where you are making probably some of the most important financial and emotional decisions of your life. You are going to be surrounded by advisers, but you’re going to be surrounded by advisers who are both working for you and also working for your partner. And instead of pitting these advisers against each other, you have a team working collaboratively together to get the best outcome for the family as a whole. The team is better than the sum of the parts. It’s such a special process if you can get it right.
(HOST) Jamie, what would your message be?
(JAMIE) You’re going to get an outcome that is the best for your particular circumstances, rather than have an outcome imposed upon you by somebody who doesn’t know your circumstances that well at all, and simply offers you the one size fits all solution to your separation.
(HOST) Bernie and Jamie, if listeners want further information on ICP and also to contact each of you, where do they go?
(BERNIE) Well in the first place you can go to the website. There’s a national website, the AACP https://www.collaborativeaustralia.com.au . Each state has their own website as well, and even pages on the website and on each of those websites, both myself and Jamie and any collaborative practitioner will be named on it. We also obviously work independently I have my own website, The Mediation Collective https://mediationcollective.com.au any information that you want or if you want to get in contact with me, you can contact me via that https://mediationcollective.com.au/mediators/bernie-bolger . All my contact details are there.
(JAMIE) If you do a search for my name, Jamie Burreket https://bablaw.com.au/portfolio/jamie-burreket you find my law firm Broun Abrahams Burreket https://bablaw.com.au it and find details about me. But generally speaking, any family lawyer you see now in your initial interview you should ask them about collaborative law. And they’ll be able to direct you some resources that can guide you in the right direction.
(HOST) Bernie and Jamie, thanks for your time.
(BERNIE, JAMIE) My pleasure. Pleasure Wallace.
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