Hofstra Law’s 2017 Siben Lecture and Symposium on Interdisciplinary Collaboration in Family Law
The Maurice A. Deane School of Law at Hofstra University’s Sidney and Walter Siben Distinguished Professorship in Family Law annual lecture series features leading scholars from law schools across the United States and promotes scholarly research, conferences and publications in the field of family law. It was established in 1984 and is funded through a generous gift from the Bay Shore, New York, law firm of Siben & Siben.
2017 Siben Lecture Dedication to Professor J. Herbie DiFonzo
The 2017 Siben Lecture was dedicated to the memory of Hofstra Law’s Professor Emeritus of Law J. Herbie DiFonzo, who passed last September, following a long-standing and flourishing academic career as a family law professor whose passion for teaching and helping families in crisis was well-recognized by the legal community. He was beloved by everyone who knew him, especially Hofstra Law students, who proudly named him Professor of the Year in 2017. His gracious acceptance speech for this honor was captured in a video that was shown at Hofstra Law’s graduation in May of 2017 and again at the Nov. 10, 2017, Siben Lecture and Symposium event.
2017 Siben Lecturer: Professor Forrest S. Mosten
The Hofstra Law’s Siben lecturer was Forrest S. “Woody” Mosten, a recognized pioneer in mediation and collaborative law and the creator of the unbundled legal services concept. The 2017 Siben Lecture became part of a similarly themed symposium co-sponsored by and held at Hofstra Law entitled “Interdisciplinary Collaboration in Family Law: The Real and the Ideal.”
This event was interactive from start to finish and sparked animated discussion throughout among the presenters and the audience. The symposium was moderated by Andrew Schepard, the Siben and Siben Distinguished Professor of Family Law and director of Hofstra Law’s Center for Children, Families and the Law, and was co-sponsored by the New York Chapter of the Association of Family and Conciliation Courts (AFCC) and FamilyKind.
The AFCC, an interdisciplinary, international association of professionals, is dedicated to improving the lives of children and families through the resolution of family conflict by promoting a collaborative approach among those who work in and with family law systems, encouraging education, research and innovation and identifying best practices. FamilyKind is a nonprofit organization offering education and support services to adults and children experiencing separation or divorce in New York City, Long Island, Westchester and New Jersey.
The symposium included commentaries on Professor Mosten’s lecture and two separate interactive presentations entitled “When Lawyers and Mental Health Professionals Collaborate: An Interactive Dialogue on Ethical Dilemmas” and “‘Igniting’ Good Ideas for Interdisciplinary Collaboration in Family Law.”
In addition to attorneys and mental health professionals, this event was attended by 60 Hofstra Law students eager to learn about cutting-edge approaches to practicing family law. Prior to the start of the Siben Lecture, Professor Mosten met informally for 90 minutes with the students in Hofstra Law’s Family Law With Skills course, at which time he chatted with them and answered questions about his experiences in the mediation and collaborative law arenas.
Professor Mosten, a world-renowned collaborative law and mediation expert, is an adjunct professor of law at UCLA, where he teaches Mediation, Family Law Practice: A Non-Litigation Approach, Lawyer As Peacemaker, and Lawyer-Client Relationship. Certified by the California State Bar as a family law specialist, he maintains a full-time practice as a mediator and a collaborative lawyer, trains lawyers and mental health professionals in the U.S. and internationally, and is in constant demand worldwide as a conference keynote speaker. He is the author of five books and numerous articles in the areas of mediation, collaborative law, unbundling legal services, expanding legal access, peacemaking, and the future of the legal profession.
The primary message of Professor Mosten’s Siben Lecture, entitled “Interdisciplinary Triage and Informed Consent: the Future of Family Law,” was that interdisciplinary teamwork by different types of professionals in the family law setting is no longer an option; it is a necessity of modern family law practice, whether in court or in an out-of-court collaborative law setting, which the family law community should accept and adopt.
Professor Mosten aptly pointed out that while the concept of teamwork is inherent in human nature and has long been practiced in the business and health care worlds, lawyers in this country usually work alone, counseling and advising their clients as well as handling their clients’ court cases. While it may appear convenient to use one professional to deliver all aspects of the client’s needs, the best interests of the client in a matrimonial situation, he averred, are better served through team expertise and the creativity of collaborative professionals in different key fields. Interdisciplinary collaboration between attorneys and financial and mental health professionals would greatly improve the scope, depth and quality of services offered to a family in crisis and greatly increase client fulfillment.
Additionally, Professor Mosten asserted that since the courtroom, in most respects, does not promote client participation, client involvement throughout other stages of the process is critical, and informed client decisions based on expert collaboration throughout the pretrial practice is the only opportunity the client may have to collect the critical information necessary to make crucial life decisions based on their particular family’s needs and dynamics. He emphasized that due to the very nature of collaborative law, it is essential that informed client consent is first obtained in order for the process to truly work. Similarly, its success also requires the attorneys participating to fully commit to the process by signing an agreement providing that they will withdraw their representation and will not represent either of the parties in subsequent litigation if the collaborative negotiations fail.
With respect to advancing the adoption of interdisciplinary teams in matrimonial and family law situations, Professor Mosten offered several guiding recommendations, which started with a basic acknowledgment by family law practitioners that interdisciplinary teamwork is an asset to matrimonial practice.
Secondly, he asserted that change in the family law field should start at the law school level since students are not now generally trained to work together and the focus of legal training is on educating the individual rather than the team member. Law schools, he said, should incorporate team-based training into their curricula so that future attorneys can first start to learn how to work with members of other fields within the safety and nurturing environment of their law schools before venturing out into the practice of law.
Just as team-based training for the law student and attorneys is required, change, he said, also needs to be effectuated at the courtroom level, where judges presiding over family law matters do not now generally appoint an interdisciplinary team to work together for the benefit of the clients.
The key, at all levels, is education with respect to how to best implement interdisciplinary team-based practice, as well as to all of its many benefits. In this regard, Professor Mosten recommended looking to the insightful work in building, structuring and training teams already developed and utilized by members of the business and health care fields, who have been in the forefront of this concept.
Lastly, he urged matrimonial and family law academics to commit to further researching the possibilities of team building in an effort to evaluate what works, what doesn’t work and what can be done to streamline efficiency and enhance client satisfaction. View a video of Professor Mosten’s lecture, starting with Professor Schepard’s introduction at the 12-minute mark.
Commentary on the Siben Lecture
Commentary on Professor Mosten’s lecture from differing perspectives was provided by the Honorable Jane Pearl of the New York City Family Court, Lawrence Jay Braunstein of the matrimonial law and related civil and criminal litigation firm of Braunstein & Zuckerman Esqs. and by Paul Meller, Ph.D., associate professor of psychology at Hofstra University and the director of the Institute for Family Forensic Psychology at Hofstra’s Saltzman Community Services Center.
All three offered insight as to why they believed that interdisciplinary practice makes a significant positive difference in clients’ lives and agreed that in order for change to be pervasive, it must start with the legal educational process.
When Lawyers and Mental Health Professionals Collaborate: An Interactive Dialogue on Ethical Dilemmas
The first presentation of the afternoon was moderated by Hofstra Law’s Ellen Yaroshefsky, the Howard Lichtenstein Distinguished Professor of Legal Ethics and the executive director of the Monroe H. Freedman Institute for the Study of Legal Ethics. Panelists included Daniel O’Leary, the president of AFFC-NY and Distinguished Professor, Clinical Psychology, at Stony Brook University; Robert Z. Dobrish, the senior partner at the matrimonial law firm of Dobrish Michaels Gross LLP; and Hal Silverman, the director of litigation for Lawyers for Children, Inc.
Professor Yaroshefsky presented two different fact patterns, each concerning a husband, wife and their children involved in a matrimonial and custody dispute in which various ethical issues arose. Hypothetical questions highlighting the particular ethical dilemmas were then posed, and the audience was polled after each question, with members signing on to a special app with their smartphones to indicate their opinions as to whether or not the proposed action would or would not result in an ethical violation for either the attorneys or the mental health professionals involved in the case.
The “voting” was conducted twice, once for the audience members who were attorneys and the second time for the audience members who were mental health professionals. The votes were automatically tallied by the app and then presented to the audience. The panel members then each discussed their particular viewpoints, with Mr. Dobrish posing as the wife’s attorney, Mr. O’Leary as a psychologist who was retained on the wife’s behalf, and Mr. Silverman as an attorney representing the children of the marriage.
This exercise adeptly demonstrated the inherent conflicts that can arise within an interdisciplinary team with each member having differing professional duties, responsibilities and ethical mandates. For example, in the fact pattern where the husband was seeking custody of the children and the wife, who had temporary custody, was acting in a strange and seemingly neglectful manner and who had admittedly left the young children unsupervised for various periods of time, the hypothetical question was posed as to whether the panel members in their respective professional roles had an obligation to report the wife’s behavior.
While Mr. O’Leary stated that psychologists are “mandated reporters” and must report the wife’s behavior even if based on only “reasonable suspicion,” Mr. Dobrish opined that the information as to the wife’s behavior should not properly be disclosed by a psychologist retained to represent a party.
A distinction was raised as to whether it was the wife who hired the psychologist or the wife’s attorney, and in the latter situation, Mr. Dobrish said, the wife’s behavior was clearly protected by the attorney-client privilege and as attorney work product. In fact, he further stated, that he, as the wife’s attorney, could be subject to a malpractice claim if he hires a psychologist to be part of the team representing the wife and the psychologist states that he is mandated to report the wife’s conduct.
Mr. Silverstein, as the children’s attorney, stated that pursuant to section 413 of the NYS Social Services Law, he would be mandated to report the wife’s alleged conduct and that if he didn’t report it, he would be guilty of a crime and subject to criminal prosecution.
Clearly, significant negative ramifications can result to the clients and to the interdisciplinary professionals due to these inherent conflicts in professional responsibility. Thus, it is critical for the participants to sit down together and attempt to resolve them prior to any interdisciplinary collaboration for or on behalf of a client.
“Igniting” Good Ideas for Interdisciplinary Collaboration in Family Law
The second presentation, “‘Igniting’ Good Ideas for Interdisciplinary Collaboration in Family Law,” was moderated by Lisa M. Petrocelli, the managing attorney and project director of Hofstra Law’s Center for Children, Families and the Law.
The “Ignite” power point presentation, first introduced in 2006, involves slides being shown at a rapid pace with discussion for each being time limited, compelling the speakers to be far more concise and thoughtful than they might otherwise be in other formats. Each presenter shows 20 slides, which automatically advance every 15 seconds, and the result is a fast, focused and engaging presentation that lasts just five minutes and that “ignites” spirited discussion.
The first “Ignite” presenter was the Honorable Rachel Adams, judge for matrimonial matters in the Kings County Supreme Court, whose presentation was entitled “Reigniting Parent Education for the 21st Century.” Judge Adams requires all parent litigants assigned to her part to attend a parental education class, after which they each are provided with an opportunity to personally speak with her. It is her belief and practice to encourage parental education and communication in order to reduce the animosity between parents that the adversarial process inherently stirs up.
Shari Bornstein, the director of FamilyKind Parent Services, focused her “Ignite” presentation on the extremely successful Regional Family Trial Docket, a specialized contested custody court in Middletown, Connecticut, in which qualified high-conflict custody cases from all Connecticut state judicial districts are referred for a full day of intensive last-ditch settlement activities after all prior settlement attempts have failed. Cases qualify if they are trial-ready, involve a child-focused issue, a family relations case study has been completed, an attorney for the children has been appointed, and the case is not more than nine months old.
This proceeding, known as a special masters’ pretrial, is presided over by one assigned judge and supervised by a family law attorney and a licensed mental health professional who is experienced in family law, conflict resolution and working with parents before or after divorce. If the case does not settle at or shortly after the pretrial, it is immediately scheduled for a trial. Out of the 160 contested custody cases referred to this special family trial docket in 2014, a remarkable 70 percent settled, leaving only 30 percent to proceed to trial.
The remaining “Ignite” presenters were Mr. Bronstein, whose “Ignite” presentation was entitled “Positive Uses for Custody Evaluation Reports”; Lesley Ann Friedland, the executive director at FamilyKind, whose topic was “22nd-Century Separation and Divorce: Interdisciplinary Teams to Support Family Reorganization”; and Jonathan Verk, the founder of coParenter.org, a child-centric online dispute resolution app designed to help parents communicate, manage and organize everyday co-parenting responsibilities without the need for court intervention. Mr. Verk’s presentation was entitled “Online Dispute Resolution and coParenting Disputes: Expectations, Process & Best Practices.”
The Siben Lecture and Symposium proved to be a very educational and stimulating day and effectively raised interest in and enthusiasm for using interdisciplinary collaboration as a meaningful tool to resolve today’s family law disputes. The success of the event was summed up by “Ignite” presenter Judge Adams: “Participating in the Siben & Siben Distinguished Lecture and Symposium on Family Law was a wonderful opportunity. I am encouraged by Hofstra Law School’s commitment to a more collaborative practice of family law. The Siben Lecture series brings developing and relevant family law topics, such as parent education, to the forefront and promotes vital discussion of issues and ideas before an audience of lawyers, mental health professionals and law students.”