Media are filled with advertisements from lawyers guaranteeing to get you “what you are entitled to.” Lawyers, particularly trial lawyers, are highly trained to fight for these entitlements. Nowhere is that deemed more important than in the context of divorce.
The reason is clear: spouses are splitting, and that means loss – loss of companionship, loss of teamwork, loss of time with children, and loss of money. Divorcing couples hear a seemingly unending stream of anecdotes about “paydays,” being “taken to the cleaners” “one last shot” and the like. Consequently, “getting the most” seems the logical next step. And, the evidence is clear that getting the most does not necessarily make litigants happy, satisfied, or give them peace about the result or process. Perhaps that is because wanting the most really isn’t what divorcing spouses most want.
Interests or Positions?
A collaborative divorce utilizes interest-based negotiation to create a divorce while traditional litigation uses a position-based process. What is the difference? An interest is defined as “something of concern or importance; something that provides help or benefit to a person.” A position is defined as “a point of view adopted and held to.” These terms are significantly different resulting in a completely different process and the potential results provided by each process. Another way of comparing these terms and the results from them is to see interest based negotiation as more likely a win/win result and position bases as more likely win/lose.
For example, an interest of a parent entering divorce might be to maintain a close and loving relationship with their children. A position of that same parent might be advocating the court grant them full custody of the children. There are many possible results and outcomes that support the interest in having a great relationship with the children during and after a divorce, but there is only one outcome that supports the position of sole custody of the children post-divorce. And, getting the desired result from advocating that position does not necessarily guarantee the interest of a great post-divorce relationship with children.
Working Collaboratively Preserves Interests
A collaborative divorce process includes, as a first step, identifying the interests of the spouses as a means of defining areas of agreement and disagreement. This provides a framework for creating options and possible solutions. The team of collaborative professionals – lawyers, metal health professionals, financial professionals – is trained to help clients identify their true interests, communicate them clearly and effectively, create and propose possible solutions as well as consider solutions offered by others in light of their stated interests.
This is admittedly not a perfect process. However, it does offer the best chance for spouses to understand what is most important to them in the context of divorce and seek solutions that further those interests. This reduces conflict, acrimony, and both the emotional and financial cost of the process so as to preserve the assets and possibly the relationship of the parties. And, it creates the possibility of discovering similar interests that produce win/win solutions that might not appear in the win/lose bargaining of litigation. Wanting the most then becomes secondary to what the parties most want.