Don’t Let Your Case Get Hijacked

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By: Ed Sachs CPA/ABV CFF

Whether you are the Neutral Financial Professional (NFP) or any other member of the Collaborative Team, you must have a conceptual understanding of how the brain functions. That concept was made very clear to me a number of years ago by Dr. Lana Stern. The two major causes of stress, discord, and disagreement in a divorce revolve around children and financial issues. If a Neutral Financial Professional is able to assess the reactions and behaviors of the parties, then he or she should be able to help recognize and properly react to the potential for what Dr. Daniel Goleman coined as the Amygdala Hijack.

According to Dr. Goleman, the amygdala is the trigger point for the fight, flight, or freeze response. These circuits in the brain perceive a threat and flood the body with stress hormones that prepare us for an emergency. These hormones effect how the mind functions. A person’s attention fixates on the thing that is bothering, upsetting, frustrating, or angering them. That means they can’t pay attention to whatever it is they’re supposed to be doing.

Dr. Goleman states, “It is important to understand that the impulses that come to us when we’re under stress—particularly if we get hijacked by it—are likely to lead us astray.”

Understand the Two Sides of the Brain

To further understand the dynamics of the brain that are key to our work, the Neutral Financial Professional should understand the concepts of right brain/left brain. The right brain is the creative and emotional part of the brain; the left brain is the more analytical. Our role in the Collaborative Process is mostly left brain work, or analytical and focused. Our job is to educate the parties on all financial issues and facilitate the financial portion of the settlement.

We can use this knowledge of how our brain works to figure out that if one or both of the parties become sidetracked by emotional issues (right brain), the Neutral Financial Professional can redirect the parties to left brain thinking by focusing the discussion on a basic financial issue. For example, this is when I like to change everyone’s eye focus and present something on a whiteboard or in a schedule we are using.

Prepare for Extreme Reactions

When dealing with a party in the Collaborative Process, the Neutral Financial Professional must be prepared for extreme reactions when the party doesn’t understand your role, doesn’t understand why you are asking particular questions, or just doesn’t agree with what you are saying.

I have gone from “devil” to “saint” with one party in a matter of 48 hours. I have also had one of the parties go back to her Counsel after my first meeting with her and demand I be replaced. How dare I ask her if she has a full understanding of the parties’ joint tax returns before signing? This was after she had already raised questions of whether her husband reports everything. It is a perfect example of when the team cannot allow one party to hijack the case. A professional team meeting must address the situation, and the team must trust each other.

Provide Different Perspectives

High conflict clients need to be recognized for their contributions to the Process and acknowledged for positive behavior. Frame issues and proposals so that it appears to be more advantageous to them.  They probably need help in seeing the other side’s perspective. The Neutral Financial Professional is in the best position to provide different perspectives to the myriad of issues.

If you receive an extreme reaction to something you present, listen carefully, reassure the party that you understand their position, ask him or her to suggest some options with consequences, and consider reframing the issue and trying to determine what the party is trying to achieve. 

Establish Rapport

In order to be effective, the Neutral Financial Professional must establish rapport with the parties as early as possible. He or she must create an atmosphere of trust and neutrality. Continually remind the parties that you are there to help, to paint the financial picture, and to answer questions and explain anything and everything financial. Remember that one or both of the parties is most likely scared to death about their future. Calm their fears and doubts as best as possible. Be truthful and honest. Don’t paint a rosy picture when the parties are really floundering in the weeds.

Avoid Confrontation

Just as important, don’t be confrontational, and remember you aren’t the authority. You have expertise, but your opinion should always be couched by the premise that anything can happen in a Collaborative settlement. I have settled long-term marriages with no alimony and short-term marriages with long-term financial payouts. Don’t be too technical, rigid or inflexible. Remember we are educators, advisors, and facilitators. Don’t quote the law, and don’t indicate that something can’t be done, unless of course, it is illegal.  Again, I have been involved in many settlements in which parties agreed to things the law would never allow a Court to do.

Always Remain Neutral and Accessible

Do not appear to take sides. That may sound pretty basic, but while it is fairly easy to remain neutral, appearing neutral is extremely difficult. You will often find yourself delivering results of your work to one party that aligns with the other party’s positions.   

Finally, as a Neutral Financial Professional you must always be accessible to the parties. As an educator, you must simplify the complex issues and use non-technical financial terms to explain. Be friendly, clear, and concise. Use visual aids whenever possible.

The Price Of Collaborative Divorce

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Let’s look at the differences:

In the Collaborative Process the Collaborative Financial Professional has full responsibility for preparing all requests for records. The attorney’s role is to make sure that their client complies. In a litigated case, the financial professional prepares a list of records needed, supplies it to the counsel, a Request for Production is prepared and filed with the court. Once the records are gathered a formal response to the request must be filed. If the response is incomplete, a motion to compel is filed and a court hearing must be held. So before the real work on the financial issues even begins, thousands of dollars in fees have already been spent.

The Collaborative Team meetings have a structured agenda, and the needs of the parties are handled in an efficient and cooperative manner. Usually, the first team meeting’s agenda covers temporary issues and needs. In a litigated case, temporary needs are usually handled in a lengthy court hearing requiring testimony of both parties, in addition to the possibility of two financial experts and mental health professionals testifying on child issues.

Finally, throughout the Collaborative Process the entire team is working towards settlement. This allows the divorcing parties to gain the understanding they need to make an intelligent and informed decision without duress or pressure before the final team settlement meeting. This meeting usually leads to a mutually beneficial agreement utilizing interest based negotiations. These efficiencies and shortening of the divorce process lead to much lower bulls from the professionals. In a litigated case the parties and their professionals hold their positions to themselves until the court ordered mediation. Due to this lack of openness and honesty and the use of positional negotiations, these mediation sessions are a long and egregious process and usually end with the parties reaching their agreement based on the need to “stop the financial drain” of litigation.

With the attorneys not filing endless motions and attending numerous court hearings and with all team members cooperating with each other and working towards the same goals, and through the use of a neutral financial expert, there is little doubt that the Collaborative Process is a less expensive option for you.

Getting Collaborative With The Entire Family

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Divorce is not only tough on the divorcing parties, but it can be most difficult on the children and family. The Collaborative Process supports and promotes the idea of being collaborative as an entire family to help achieve a more peaceful divorce. In order for the collaborative process to be successful, everyone’s feelings and voice should be heard. CLICK HERE to get some more tips on how your entire family can peacefully be involved in the collaborative process. Always remember that you can get a divorce without a fight.