Battle of the Spouses – Divorce Mediation

Avoiding Malpractice: Tips for Social Workers to Manage Risk

Battle of the Spouses – Divorce Mediation

As a practitioner, have you ever felt like the tennis court net caught between two battling spouses slamming the tennis ball at each other? Eventually, and often frequently, the practitioner is hit in the crossfire by the ball.

Well, that is exactly why virtually all Professional Liability policies (except for the NASW RRG PLI policy), exclude coverage for legal defense expenses and exclude coverage for damages arising from any claim or proceeding that are rooted in divorce mediation services, whether or not a fee is involved for such therapy. This category is one of the most frequent Licensing Board complaints and lawsuits in the professional liability insurance industry. That is why insurance carriers exclude such coverage.

Check your professional liability insurance policy to determine what the exclusions and conditions are. The NASW RRG PLI policy has no exclusions for this peril, and you are covered automatically.

The very first item on your checklist prior to beginning treatment in these types of cases is to create a documented record of resistance to disclosure. You must protect yourself and comply with state mandates while avoiding a contempt citation when not releasing records that are under subpoena. Here are some simple steps:

  1. Provide a written statement to each and all parties that explains that you, as the practitioner, are a neutral and unbiased intermediary and that you, as a matter of fact, shall not act as an advocate for or against any party.
  2. Advise the parties in writing at the time of any settlement or other such agreement, to have such agreement reviewed independently by a lawyer of their choice prior to the execution of the agreement.

Practitioners typically do not get into trouble for resisting in good faith. However, before responding to a subpoena, immediately get your lawyer involved. Your PLI insurance policy may or may not cover this expense, however, your NASW RRG PLI insurance policy will cover you.

Here is an example of what you will likely face being that proverbial tennis net. We have experienced many cases that involved a couple dealing with a divorce. Often, fighting arises regarding child custody after the couple was previously in therapy with a practitioner. Spouses look for dirt to throw at each other and want to dig it up from the social worker’s notes.

Each spouse in couple therapy was seen individually, but the practitioner smartly made each acknowledge in advance and in writing, that these individual sessions were to be considered as part of the couple work. In the child custody proceeding, litigation starts in this example when the husband’s attorney subpoenas the records of the practitioner after the practitioner refuses to release the records upon the signed authorization of only the husband.

This gets us into the legal matter of privilege or titled privilege, and you should consult with your lawyer for a more detailed explanation. Here is a brief overview.

The psychotherapist-patient privilege generally belongs to the patient or the guardian or conservator of the patient. This means that he or she may prevent the therapist or counselor from disclosing information (such as testifying or providing records pertaining to the treatment of the patient) in a legal proceeding. Or may provide a waiver to allow the disclosure.

So what happens with the privilege when a therapist or counselor treats a couple? Without the existence of a privilege, a patient’s confidentiality would be jeopardized anytime he or she was involved in a lawsuit or other matter. The treatment records could be compelled by subpoena. States have established privileges for only a few special relationships – such as lawyer-client, doctor-patient, and psychotherapist-patient so as to enable people to obtain services without the fear that their confidential and their personal information being revealed.

The existence of a privilege generally means that there exists an exception to the general rule of law that says that no person has a privilege to refuse to be a witness or disclose any matter, or refuse to produce any writing, in specified legal proceedings. Your lawyer on your behalf as the practitioner, would typically and initially, assert the privilege on behalf of the couple. That is why written agreements with the parties that address these matters are a precondition to therapy.

Ultimately, the attorneys for the husband and wife would discuss the issue (arguing their own views based upon what’s good for the particular client) and come to some agreement. This is when your PLI insurance policy would provide a legal defense; virtually all insurance carriers do not, except for the RRG PLI insurance policy. Regardless, the issue will be litigated. An interesting tactic used in custody battles is whether or not a party inserts his or her mental or emotional condition into the lawsuit by filing for sole custody of a child – and thereby waives the privilege.

One thing you can count on is that both plaintiff and defendant lawyers’ billable meters run on both sides, and usually up to $875 per hour.

So the key here for YOU, the practitioner, is documentation clarity as evidenced by the practitioner’s notes, and therapy preconditioned by agreements with all parties and written notices as aforementioned. Unless precluded by state law, disclosures as to how these therapy sessions are to be interpreted, together with the clarity and exactness of the patient acknowledgments should be adequate for court acceptance.

This is a complex legal issue and a very expensive issue that is all too frequent in social work practice and related counseling matters. We recommend that for your best practice methods and preparedness, you construct a game plan and roadmap in advance with your lawyer in anticipation. It typically is only a matter of time when you are served a subpoena for records involving battling spouses, and complications with child custody.

Published September 2018

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