Reprinted from Family  Therapy Magazine, July-August, 2009

            
This  article will address the varying roles of the mental health professional in the  divorce mediation, collaboration, negotiation and litigation processes.  The reader will see that adversarial  negotiations may be either cooperative or aggressive, and that the mental  health professional’s involvement in the litigation arena make take different  forms. 

            
When  the mental health professional’s client is involved in divorce mediation or  collaboration, the client and his or her attorney will typically be genuinely  motivated to help the family.  The  parties will share common goals, and will be seeking traditional services at  the direction of their attorneys such as individual or family therapy, help  with couples communication, co-parenting assistance or therapy for their  children.

            
Licensed  mental health practitioners may obtain training in the collaborative divorce  process, and may actually participate in that process.  That participation may entail acting as a  “neutral mental health professional” to help facilitate the negotiations, may entail  functioning as a “coach” to offer insight and encouragement to one or both  parties in helping to evaluate options and needs, or may entail acting as a  voice for the parties’ child or children.

           
Clients  unable to mediate or collaborate may become involved in either cooperative  adversarial negotiation, or aggressive adversarial negotiation. Cooperative  adversarial negotiation may proceed in much the same manner as  proceedings involving mediation and  collaboration, and again the attorneys may encourage the parties to seek the  same mental health services as in non-adversarial cases. 

            
However,  if the adversarial negotiation is aggressive, the therapist may find that he or  she is being sought after to act as a “hired gun” to advance an individual  party’s agenda.  The client’s attorney may  be looking to involve the mental health professional to develop and strengthen  evidence for posturing in the negotiations, or to groom the therapist for court  testimony.  The therapist will be called  upon to willingly cooperate with the client’s attorney, and may be subjected to  pressure to tell the other party’s attorney, or a judge, what the client’s attorney  wants the therapist to say. 

            
Clients  unable to mediate, collaborate, or negotiate either cooperatively or  aggressively, may become involved in divorce litigation.  The mental health professional may be drawn into  that arena either by the client, or by the client’s soon-to-be-ex-spouse, or  “X2B.”                           The  client may wish to involve the therapist in the court proceedings because the  therapist may be able to render an “opinion” if “qualified” by the client’s  attorney (verb – not adjective) as an “expert.”   Judges often give greater weight to the testimony of experts, which may  then result in each party hiring his or her own expert so the experts may duel  it out in court.  An expert, unlike a nonexpert  “lay” witness, is entitled to render an opinion in the matter for which he or  she has been qualified.  The sought-after  opinion may relate to who should have custody of a child, and whether  court-ordered visitation terms should perhaps limit contact or set conditions  as a prerequisite. 

            
Significantly,  the opinion can be based upon hearsay.   Hearsay is a statement by someone not present in court, which statement  is offered for its truth, such as the statement of a child who is too young to  testify in court.  For example, a mother  may wish to call the child’s therapist to testify that the child told the  therapist that during visitation dad yells, drinks, swears, watches  pornography, has his paramour over past the child’s bedtime, or any of the  foregoing, and that therefore it is in the child’s best interests that mom’s  request for supervised visitation, or request for terms of  visitation (such as attendance at AA, no  cohabitation, or no inappropriate computer viewing) be granted.    

           
A  client may also wish to have his or her therapist give lay (nonexpert)  testimony as to facts (not opinion), such as the therapist’s observation that  after the client learned of his or her X2B’s adultery and betrayal, the client  is in therapy, is on medication, gained or lost weight, and is deeply  upset.  These facts may support a claim  that the client’s X2B’s behavior has had a negative impact on the client’s well-being,  and that therefore, the attorney will argue, the client should get a greater  share of the marital assets. 

            
The  therapist should be aware that his or her testimony, just as the testimony of  any party, is subject to impeachment.  If  testimony is “impeached,” that means the testimony is shown to not be  trustworthy, and therefore should not be given much weight by the judge.  A showing of bias is one way in which  attorneys will try to impeach testimony.   Bias can be shown by having the professional disclose how much he or she  is being paid to testify in court, or to render professional services, in an  effort to show that the professional has a financial stake in saying what the  client wants him or her to say

            
The  therapist may also find him or herself involuntarily involved in litigation  proceedings by his or her client’s X2B.   The attorney for the client’s X2B may telephone the therapist in an  effort to influence or “enlighten” the therapist as to the client’s bad  behavior, in the possibly misguided belief that the therapist will somehow get  his or her client to see the light, to admit to wrongdoing, and to address the  perceived problem.  The attorney may  think the therapist is unaware his or her client has a sexual addiction, has  undiagnosed bipolar disorder, has borderline personality disorder, or is  narcissistic. 

            
If  the attorney for the client’s X2B is unable to co-opt the therapist to his or  her cause, such as perhaps being unable to get the therapist to pressure the  client to agree to supervised visitation, the attorney may feel compelled to  take action to get the therapist to “cooperate” or to “see the truth.”  The attorney may then serve the therapist  with a subpoena. 

            
The  attorney may serve the therapist with a subpoena compelling the therapist  merely to produce documents.  Or the  attorney may subpoena the therapist to be deposed in the lawyer’s office. This  proceeding is called a “discovery” deposition, at which deposition the attorney  will attempt to “discover” information to use at trial. 

           
If  the therapist is subpoenaed to appear for a discovery deposition, the attorney  may be looking for evidence of a psychological disorder, evidence of a sexual  disorder, or evidence that as a mandated reporter the therapist reported  physical or sexual abuse by his or her client to the appropriate  authorities.  The therapist may “move” to  “quash” or eliminate the subpoena if the therapist fears the therapeutic  relationship would be compromised by disclosure of information, or if it is not  clear who will be paying the therapist for his or her time.

            
The  professional will have to appear to be deposed, unless he or she files a motion  with the court to quash the subpoena, and the motion is heard by a judge and  granted.  Otherwise, the professional risks  being held in contempt of a subpoena.  At  the deposition in the lawyer’s office, the therapist will have to answer  questions under oath.  The subpoena to  attend the deposition may include a mandate that the therapist bring his or her  records regarding the client. 

           
If  the therapist would not be available to testify on the date of trial, an  attorney may serve a subpoena upon the mental health professional to attend  what is called a de bene esse deposition, which is a deposition for the purpose of preparing and using a  transcript of the deposition in court as testimony.  At the de  bene esse deposition the professional will be placed under oath, will be  questioned, and the testimony will be transcribed.  That transcript will be read by the judge at  the hearing, and will be considered in the same manner as live court  testimony. 

            
The  therapist may be subpoenaed by the client’s X2B to testify at trial.  The therapist will have to answer the  questions propounded by his client’s spouse’s attorney, unless the client’s  attorney objects to a question and the judge sustains that objection.  The therapist will then be cross-examined by  his or her client’s attorney. 

            
Although  called to testify by the client’s X2B, the client or the client’s attorney may  help the therapist with the logistics of testifying - when, where, navigating courthouse  security, what to wear, and how to answer questions.  That attorney may even help the therapist  “prepare” his or her testimony.   The client’s attorney does not represent the  therapist, however, and is under no duty to protect the therapist’s  interests.              

  Conclusion

            
This  article discussed ways in which a mental health professional may be involved in  the resolution of divorce – whether through mediation, collaboration,  negotiation or litigation.  To best serve  the needs of the client, and to protect his or her interests, it is essential  for the mental health provider to understand the context in which the divorce conflict  is being addressed