“Joint expert” vs. “finAnCiAL neutrAL”: the three Key differenCes
Collaborative Law Section
Chairs: Shannon Ciesluk – CBIZ, LMHM and Jessica Felix – Felix, Felix & Baseman, LLC
in collaborative cases,
the primary role of the
financial neutral is to
explore options — helping
W
hen hired to jointly
serve both attorneys
and their clients in
family law cases,
the forensic CPA works in a very
different capacity depending on
whether the case is litigated or
collaborative. In litigated cases,
the forensic CPA serves as a “joint
expert” and may provide expert
testimony if the case proceeds to
court. In collaborative cases, the
forensic CPA serves as “financial
neutral” and may not be involved
if the case goes to court; however,
while the work is limited to the
collaborative process, the financial
neutral often has a more expanded
role within the collaborative team.
The primary role of the joint
expert in litigated cases is often to
express opinions — helping to
educate the court. Alternatively,
in collaborative cases, the primary
role of the financial neutral is to
explore options — helping to
educate the clients. The financial
neutral often has greater flexibility
in assisting each client with getting
questions answered efficiently and
comprehensively, outside of the
typical formal discovery requests
of litigated cases. The goal within
the collaborative process is to
quickly help both clients to establish
“equal footing” regarding their
finances, allowing them to make
fully informed decisions. Once the
financial information is assembled,
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to educate the clients.
the financial neutral facilitates
“option-building” discussions
with the full team, usually in a
conference room setting involving
both clients, both attorneys, and
a mental health professional.
The primary responsibility of the
joint expert in litigated cases is to
be responsive to a specific list of
tasks in which the expert is expected
to provide an opinion. The primary
responsibility of the financial neutral
in collaborative cases is to be
proactive to the evolving needs of
the team. The goal of information
gathering within the collaborative
process is to be both as efficient
as possible and as exhaustive as
needed. Document requests can
often be far more streamlined
and tailored to specific areas of
concern, as the team discusses
up-front the areas in which there
may already be agreement. The
financial neutral also works closely
with the collaborative facilitator
(mental health professional) to
address emotional issues which may
be limiting progress on the financial
front. Beyond the technical and
communication skills needed in a
litigation case, the financial neutral
must also have a high “EQ ,” being
aware of the emotional subtleties
of each client and exploring how
to creatively address their concerns.
The primary foundation for
decision-making within litigated
cases is often position-based —
where each side takes positions
based on their application of case
law and the joint expert provides
opinions based on the underlying
assumptions provided by each
attorney. In collaborative cases, the
foundation for decision-making is
primarily interest-based — where
the starting point for discussions are
the specific interests of each client.
Positions can often be harmful in
settlement discussions, encouraging
polarization — in which the other
side often takes an equally opposing
position. The more each side
clarifies and defends their positions,
the more committed they are to
them and the harder it becomes
to retract. The financial neutral’s
goal in collaborative cases is to
avoid positions by helping the
clients focus on their specific
interests instead. Whereas
settlement discussions in litigated
cases often involve offer/counter-
offer negotiations, financial neutrals
help to explore creative options
that specifically
meet the
clients’ shared
interests. n
Author:
J. David Harper,
CPA, ABV, PFS,
CFF, CBA, CVA
– Westbay CPAs
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HCBA LAWYER