HCBA Lawyer Magazine Vol. 30, No. 5 | Page 30

“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, 28 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 M AY - J U N E 2 0 2 0 | HCBA LAWYER