Family Divorce Solutions Experts Discuss Informed Consent and Decision Making in the Collaborative Divorce Process
Sherman Oaks, California –
When clients choose the Collaborative Practice method for their divorce, it has traditionally been governed by specific rules about informed consent to inform the clients making decisions regarding their divorce process options.
Professionals currently rely on the mediation confidentiality privilege to protect confidentiality in the Collaborative Process. However, does informed consent end after the parties sign the collaborative stipulation? With possible changes in the mediation confidentiality privilege, informed consent and informed decision making have never been more important.
Recently proposed legislation in California could significantly change informed consent. Further, a recent court decision involving the divorce case of “Law & Order” television creator Dick Wolf and his ex-wife Christine throws previous expectations into question.
Family Divorce Solutions members Fred Glassman, J.D. and Warren Sacks, CPA, joined by Joe Spirito, J.D. of A Better Divorce, will discuss the changing circumstances in their presentation “Informed Consent and Decision Making: Consensus or Controversy,” at the upcoming Collaborative Practice California (CP Cal) Conference XI in Redwood City, California on Saturday, April 30.
The trio will explore the current definitions, myths and ethics of informed consent and decision making; its continuity through the Collaborative Process; and the impact of proposed legislation.
Collaborative Practice faces a threat to its future existence due to proposed changes in the California Evidence Code recommended by the California Law Revision Commission (CLRC). The State Legislature directed the Commission to analyze “the relationship under current law between mediation confidentiality and attorney malpractice and other misconduct, and the purposes for, and impact of, those laws on public protection, professional ethics, attorney discipline, client rights, the willingness of parties to participate in voluntary and mandatory mediation, as well as any other issues the commission deems relevant.”
The Legislature specifically requested that the Commission examine relevant Evidence Code Sections, California court rulings, the availability and propriety of contractual waivers, and the law in other jurisdictions, including the Uniform Mediation Act, as it has been adopted in other states, other statutory acts, scholarly commentary, judicial decisions, and any data regarding the impact of differing confidentiality rules on the use of mediation.
The Commission is now in the process of forming a tentative recommendation, which will be circulated for comment when completed.
“While this process is underway, it is vital for all Collaborative professionals to have a full and complete understanding of the current legal and ethical provisions governing informed content and informed decision making by the parties,” said Glassman. “As we see from the Wolf case, fulfilling only the minimum legal requirements may not be enough to protect everyone involved, clients and professionals alike. It may even do long term harm to the Collaborative Process, as legislators may point to cases like the Wolf case to advocate for changes which would profoundly change the benefits of Collaborative Practice,” said Glassman.
Christine Wolf learned shortly after their divorce settlement was final in 2003 her ex-husband Dick Wolf had signed a $1.6 billion three-year deal to produce his television series franchise. She eventually sued the financial professionals involved in facilitating the divorce settlement, claiming they were biased in favor of her husband, and misled her about the value of her ex-husband’s financial worth and their community assets.
Los Angeles County Superior Judge Holly Kendig ruled in favor of the financial professionals on April 6, agreeing that current California law protects anything said during mediation from being disclosed. Christine Wolf had hoped to present evidence that the mediation process was unfair to her and claim the defendants breached their fiduciary duty, coaxing her into agreeing to the settlement through fraud.
“There is no question of fact that mediation confidentiality applies to this action, and that the actions of the mediators is protected by the litigation privilege,” Kendig wrote.”[T]he court agrees with defendants that the California Supreme Court has made clear that all mediation participants have a near-unbreakable right of confidentiality, even to the point of shielding professional misconduct,” she wrote.
“Financial professionals are relied upon by the clients as well as the rest of the Collaborative Divorce team members to play a neutral role, and to fully disclose relevant, material financial information,” said Sacks. “We then meet with our clients and the professionals to fully disclose the information, and discuss all of the implications of their decisions based on this information. Given the gravity of these decisions combined with potential changes in the law, we cannot be diligent enough in working with our clients to achieve complete understanding of their choices or options regarding settlements, or it could come back to haunt us as professionals and harm Collaborative Practice as a whole.”