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analysis-blackboard-board-355952Understanding the difference between interests and positions could make all of the difference in helping you negotiate a better outcome in your divorce. Position-Based Bargaining: Most people have a tendency to negotiate by arguing in favor of their positions. In divorce, this type of “position-based” bargaining can actually make it more difficult to get what you want. Once you and your spouse become locked into positions, the need to defend those positions can lead to a lengthy and expensive divorce. Often position based negotiations come to an end only after both parties have reached a point of physical and emotional exhaustion only to reach a “meet in the middle” agreement. One of the many problems with meeting in “the middle” is that the best solutions may have existed outside of either position. Creative negotiation that avoid positions and focus on interests can lead to outcomes that are better for both parties. Interest-Based Bargaining:   In divorce, couples start by determining their interests and look for true “win/win” scenarios. In order to appreciate how interest-based bargaining works, it is important to understand the difference between positions and interests. Positions are narrow; “win/lose” proposals can only be satisfied in one way. For example, statements such as “I want Sole custody” or “I need $5,000 per month in support” or “I must have the house” represent positions that require the other person to “lose” in order for you to win. On the other hand, “interests” (sometimes called goals) focus on big picture desires that can be satisfied in many ways. Statements such as “I want our children to be kept out of the conflict” or “I want financial stability for both homes” or “I want us to be able to communicate better in our co-parenting” are requests to have an important interest met. One of the advantages of focusing on big-picture interests is that you and your spouse are likely to have many of these interests in common. Therefore, although working on the details of how these interests can be met will still require some problem solving skills (and some bargaining) the negotiation becomes easier because you are both working toward these important common goals. Interest-based bargaining is a skill that needs to be developed over time. Divorce negotiations are usually improved when the professionals involved have significant training and experience in this method so that they can teach these skills to their clients. Most mediators and Collaborative professionals have training and experience in interest based bargaining. To locate a professional who understands this method to interview and to learn more about interest based divorce negotiation go to www.collaborativelaw.org or www.divorcechoice.com.
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pexels-photo-256485 There is a “new” way of going through divorce that puts clients in charge.  It’s called “Unbundled Legal Service” and it means that the clients get to have legal advice without having the lawyers take over the full case.  This allows clients to get legal advice, and whatever else they truly want, without having to pay lawyers to do things they could do themselves. The word “unbundled” may seem like a strange phrase if you did not realize there was a bundle in the first place.  Most clients do not realize that, when they retain a divorce lawyer in the traditional model, the lawyer is authorized (sometimes even required) to engage in the full range of services, from information gathering, to responding to all relevant communications, to reviewing all documents related to the case. Unbundling lets the client choose which things the lawyer will do for them; and which things they will do for themselves. This provides an opportunity to have more control over cost and, sometimes, acrimony. Lawyers charge high hourly rates. When they are providing important legal advice or analyzing complex issues, these hourly rates can be a very wise investment. The decisions you make during your divorce can impact your finances by tens of thousands of dollars and, helping you make important decisions regarding your children may be priceless. On the other hand, paying your lawyer to wait at the courthouse, or drive downtown, or gather your bank records, does not make economic sense. In addition to helping clients save some of their resources for themselves, unbundling can free up funds for clients to spend on other important resources, such as a child specialist to help them co-parent their children, a financial expert to help them make good financial decisions, a coach to help them with communication, or a therapist to help them adjust to the emotional impact of the divorce. While unbundling of legal services is being heralded as a brave new trend, it is, in many ways, a throwback to an old idea; the attorney as “legal counsel” – a concept that was much more common in earlier days.  It is only recently, in the more adversarial climate of the past century, that the notion of lawyer as “hired gun” has become widespread. Frustration with both the acrimony and expense of the adversarial approach have caused many divorcing people to forego getting legal advice altogether.  Unbundling, or the renewal of attorneys as legal counsel, is allowing people to have the best of both worlds; sound advice combined with control over cost and acrimony. Unbundled divorce has many different variations.   One popular form of unbundled divorce is called Collaborative Divorce, where clients choose to have the lawyers focus solely on settlement.  Because 97% of all cases settle, hiring lawyers to focus only on settlement helps clients make sure that their legal fees are spent on things that matter to their future.  To learn more about Collaborative Divorce go to www.collaborativelaw.org and www.ousky.com.
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550382895-man-and-woman-with-illustrated-speech-gettyimagesBelieve it or not, most divorce lawyers are very good people. I know that seems hard to believe, based on the negative opinions that much of the public has about lawyers; and about divorce. But it’s true. Divorce has never been the most lucrative area of law, and it really can be emotionally draining, so most of the lawyers who choose to work in this area have done so because they care about families. And most of them truly do try to help make a positive difference. This may seem odd coming from someone who has spent most of his career keeping people out of divorce court and, to a degree, away from lawyers. In fact, I do believe that family law issues can be resolved much better when we get as far away from the court as possible, but that is not because judges and lawyers are bad people; the courtroom just isn’t a place designed for family problems. At least not yet. There are people out there with great visionary ideas so that we may one day see a courtroom that is truly designed to help families heal. We seem to be heading in that direction but there is a long way to go. Until that happens, the courtroom can still have a tendency to polarize families in unexpected ways. Today, there are many ways to resolve family issues; you can mediate, collaborate, litigate, agitate or even just vegetate. There are plenty of good lawyers working in all of these issues. Even litigation, the last resort of the family law food chain, has drawn many good people. To use a medical analogy, litigation is the surgery of the divorce world; something to use when all else has failed. But if it does happen, you still need a good surgeon; not just one that can cut straight but one that can minimize the collateral damage; and that can be the toughest part. So, what is the true measure of a great family law attorney? In my humble opinion it is an attorney who will give you an honest answer even if your best process option does not fall within their particular method of practice. It’s the collaborator who will tell you when you truly need to litigate or the litigator who will let you know when to collaborate. Even more, it is the lawyer who will tell you that they just don’t know about a particular option. The attorney who will admit that he or she just doesn’t really have much knowledge about a particular area is doing you a great service. The Collaborator who will admit that he has never been in the courtroom much and, therefore, cannot speak from experience about what goes on there, is upholding his or her solemn duty. Similarly, the litigator who admits that most of what they know about Collaborative Law is hearsay and suggests you go to a competent and experienced Collaborative attorney to have your questions answered about that process. This blog is written on the Collaborative Law website, so naturally I am going to end by suggesting you contact a Collaborative Professional about Collaborative Practice. See www.collaborativelaw.org. or www.divorcechoice.com. But don’t just settle for that. Make sure that the person who gives you advice provides you with honest answers about all process choices. And if they don’t have the answer, or if they don’t have an experience in an area, make sure they tell you that. You deserve that. There is too much at stake for you to simply be sold whatever some attorney happens to be selling.
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Divorce is difficult and painful; so it can feel very important to have friends, family and an attorney “On Your Side”.  But what does that truly mean?  Sometimes, during a divorce having someone “on your side” might mean the very opposite of what your instincts tell you. Let’s take this example.   Imagine that you are near the end of the divorce negotiation and your spouse has made what seems like his or her final proposal.  If the case cannot be settled, the judge is going to schedule this matter for trial. You want to settle, but the settlement seems very unfair to you, particularly since your spouse was the one who had an affair and your spouse is the one who files for divorce. Your instincts and feelings tell you to reject the agreement “out of principle”. You go to your closest friends and family members and ask them what they think, because they are truly “on your side.” In my opinion, without even knowing the details of the proposal, I believe there is at least a 90% likelihood that your friends and family will agree that the proposal is unfair.  How could I know that?  Because, over the past 32 years of representing divorce clients, that is what my clients have reported hearing from their friends and family at least 90% of the time.   More importantly, in the majority of the cases, the advice of the trusted friends and family turns out to be against the interests of the client. How can this be?  How could these trusted friends and family members be so certain to give you bad advice?  I believe it is primarily caused by three conditions. First, your friends are hearing your skewed version of things.  No matter how objective you try to be, you are nearly certain to describe the settlement in a way that supports your belief of its unfairness. Second, because they are your dear friends; they have likely become a bit suspicious of (and maybe even angry) at your ex spouse, so that nearly any proposal will seem like far less than you deserve. Third, they want to remain your friends, and they want to “support” you.  So they tell you that you are right, in a way that “validates” your feelings and helps cement their relationship. The sad reality is that in many of these instances, the settlement offered might be as good, or even better, than what a court would do, and that accepting the settlement is actually in your best interest.  If that is true, then your friends, in helping talk you out of the proposal; in telling you what you desperately want to hear; instead of what you need to hear, are doing you a great disservice. During these times, you may turn to your attorney; to get his or her advice about the settlement.  Will they be a “friend” and tell you  how unfair that it all is, or will they be wise counsel, and recommend a settlement, even though it will cost them some money and, perhaps, cause you to like them less?  It depends on whether they are truly “On Your Side”. To learn more about attorneys who will try to be “on your side” even if it gets them fired, go to www.collaborativelaw.org or www.divorcechoice.com.
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173776883-chasm-man-woman-silhouette-gettyimagesUnderstanding the difference between interests and positions could make all of the difference in helping you negotiate a better outcome in your divorce. Position-Based Bargaining: Most people have a tendency to negotiate by arguing in favor of their positions. In divorce, this type of “position-based” bargaining can actually make it more difficult to get what you want. Once you and your spouse become locked into positions, the need to defend those positions can lead to a lengthy and expensive divorce. Often position based negotiations come to an end only after both parties have reached a point of physical and emotional exhaustion only to reach a “meet in the middle” agreement. One of the many problems with meeting in “the middle” is that the best solutions may have existed outside of either position. Creative negotiation that avoid positions and focus on interests can lead to outcomes that are better for both parties. Interest-Based Bargaining:   In divorce, couples start by determining their interests and look for true “win/win” scenarios. In order to appreciate how interest-based bargaining works, it is important to understand the difference between positions and interests. Positions are narrow; “win/lose” proposals can only be satisfied in one way. For example, statements such as “I want Sole custody” or “I need $5,000 per month in support” or “I must have the house” represent positions that require the other person to “lose” in order for you to win. On the other hand, “interests” (sometimes called goals) focus on big picture desires that can be satisfied in many ways. Statements such as “I want our children to be kept out of the conflict” or “I want financial stability for both homes” or “I want us to be able to communicate better in our co-parenting” are requests to have an important interest met. One of the advantages of focusing on big-picture interests is that you and your spouse are likely to have many of these interests in common. Therefore, although working on the details of how these interests can be met will still require some problem solving skills (and some bargaining) the negotiation becomes easier because you are both working toward these important common goals. Interest-based bargaining is a skill that needs to be developed over time. Divorce negotiations are usually improved when the professionals involved have significant training and experience in this method so that they can teach these skills to their clients. Most mediators and Collaborative professionals have training and experience in interest based bargaining. To locate a professional who understands this method to interview and to learn more about interest based divorce negotiation go to www.collaborativelaw.org or www.divorcechoice.com.
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172174256-difficulties-of-life-gettyimagesIf you are getting a divorce, do you really need a lawyer? Increasingly, people are saying no. In some states, the number of people seeking a divorce without lawyers is reportedly as high as 70%. Is this a good idea? It depends. If you have a very short marriage; no children; few assets and both spouses can provide for their own support, your divorce might be simple, and you may be able to safely get it done on your own. However, if you have children and/or important financial issues, getting a divorce without legal help can be very costly. In my experience of watching thousands of divorces over the past 30 years, I think 90% of the people going through divorce would benefit from some legal help. The real question is deciding just how much is the right amount. Many divorcing people are, understandably, afraid to get lawyers involved at all, fearing that once you get a lawyer on board, they will be on a slippery slope in which legal costs will rapidly spin out of control. It is true that this can happen, but there are ways to prevent this danger. Most people don’t realize that there are ways to hire attorneys in a divorce and carefully manage your costs. Part of the key is to understand the difference between a retained attorney and a consulting attorney. A retained attorney is someone you hire to serve as your “attorney of record”, meaning that they are identified, to the court and to your spouse as your legal representative throughout the divorce. Retained attorneys generally have a responsibility to take all actions necessary to comply with court rules and move your case forward, and therefore, costs can be hired. On the other hand, a consulting attorney is an attorney who works with you, as a consultant, and will only perform the specific tasks that you authorize. (This is sometimes referred to as unbundled legal service since you are choosing select specific legal services rather than the full “bundle” of things that retained attorneys have to do.) There are, of course, pros and cons of hiring an attorney as a consultant that need to be carefully considered before choosing that option. The biggest danger of having an attorney as a consultant only, is that you do not truly have someone representing your interests. You are essentially representing yourself. Nevertheless, if you are interested in containing costs, it is important to have this option fully explained to you before you proceed. There is also a third option, called Collaborative Law that can, in some instances, combine the best elements of full retained representation and having a consulting attorney. A Collaborative Attorney is an attorney retained for settlement purposes only.   The Collaborative Attorney would be your attorney of record and will fully represent you through the full negotiation of your case. However, because both Collaborative Attorneys sign an agreement not to go to court, you do not have the danger that the attorney will be forced to incur hours on your case that are outside of your control. To learn more about Collaborative Law go to www.collaborativelaw.org.
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Divorce is unfair in that is often asks people to make some of the most important decisions in their lives at a time when they may be impaired by many emotions, including grief. Many clients experiencing divorce have described the process as feeling like dealing with a death.  It is true that no person dies, and therefore the analogy of death is not perfect, but a marriage dies and some amount of grief would seem quite natural. In addition, grieving the loss of a marriage can be complicated because there is less of a support network.  As a culture, we have learned how to help people grieve death. However, the people in your support network may not know how to help you grieve the loss of your marriage, and that can cause them to respond with either anger or avoidance instead. One of the significant trends in our society is an increased understanding of the role of hospice when someone in approaching death. Hospice occurs after all efforts to preserve life have been exhausted. At that time, the focus of the medical team and support personnel turns away from finding a medical “solution” and toward providing comfort and care and preparation for what lies ahead. It may seem odd, to think about hospice for a dying marriage, but many of the same principles may apply. If all efforts to save the marriage have been exhausted, it may be best for the legal team, as well as friends and family, to switch to providing comfort, and, perhaps, to finding time to grieve. Giving divorcing clients time to grieve, and providing resources to help them with the grief, (including options such as coaching, or divorce closure counseling), could help people make better decisions when they are ready to focus on divorce details. If you are facing divorce, and feel like you need time to grieve, it is important to select a divorce team that understands why this is important, and to fully explore your divorce options so that your emotional health can be taken into account. To learn more, go to www.collaborativelaw.org or www.divorcechoice.com.  
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548557637-dramatic-stormy-sky-over-sea-gettyimagesDivorce means loss. It cannot be denied that a marriage is ending. However, the actual process of divorce can be one of preserving many things that do not have to be lost; including the well-being of your children, your emotional and financial well-being and even the quality of your relationship with your soon-to-be ex spouse. If you are facing divorce, getting a successful outcome may depend on your ability to focus on preserving the things that matter the most to you. If you are a parent, it is likely that the impact of the divorce on your children is your primary concern. It is true that a divorce can have a significant impact on your children. However, children can be very resilient and it is possible to preserve the hopes and dreams that you have for your children if you are able to select a divorce process that keeps your children out of the middle and focuses on their needs going forward. Similarly, if you are concerned about your emotional well-being, it is possible to choose a divorce process that allows you to get the help you need in adjusting to your new life. Finally, if your financial stability is your main concern, you need a process that allows you to create a stable financial future. One of the key features of the Collaborative Divorce Process is that it is designed to give you the tools you need to preserve the things that matter the most to you.   In the Collaborative Divorce Process, most couples work with a team of professionals so that you can preserve the things that matter the most to you.  In a Collaborative Divorce, you can have a neutral Child Specialist to help you make sure that the needs of the children are central to all of the other decisions in the divorce. You can also have a financial expert on the team to help you find a better financial solution and to help you manage your finances better in the future. In addition, you can select a divorce coach to help you, and your spouse, address the communication and emotional issues that will help you build a better future. Finally, you and your spouse can each have Collaborative Attorneys; legal professionals who will work on your behalf for settlement purposes only. Because Collaborative Attorneys focus only on settlement, you will be able to have someone to work on your behalf, without creating unnecessary acrimony. To learn more the Collaborative Process, go to www.Collaborativelaw.org or to www.divorcechoice.com to locate a Collaborative professional who will provide a free consultation.
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494322995-business-people-shaking-hands-in-meeting-gettyimagesIf you are facing the possibility of a divorce, choosing a divorce lawyer could be one of the most important decisions in your life. Divorce is unfair. It forces you to make some of the most difficult decisions in your life at a time when you might be least able to do so. Having someone you trust to advise you is important. There are hundreds of lawyers in the Twin Cities with significant experience handling divorce cases.  Regardless of what you may think of lawyers (and surveys would suggest that may not be overly positive) lawyers are, for the most part, like the rest of our society. They come in all shapes and sizes, and have varying degrees of skill, honesty and effectiveness. If you work hard and do your homework, you can find one of the really good ones. Perhaps more importantly, you want to the best attorney for you. The key is to know how to investigate and interview so that you find the right fit. Investigating Lawyers to Interview. The first step is to find attorneys to interview. The best way to start is to talk with people you know who have had a positive experience with their divorce attorney and find out what it is about their attorney that they liked. The other option is to research the internet carefully, at least to make sure you understand all of the process options available. While it would be reckless to choose an attorney from online information alone, the internet can be an effective way to find someone to interview. It is also a good way to learn about the main process choices that exist in our community; namely traditional representation; mediation and Collaborative Practice. Once you have found an attorney to interview (or ideally several attorneys), you should contact each attorney (by phone or email) and find out if they charge for the initial consultation. Many family law attorneys will provide consultations for free, or at little charge, in order to give you the opportunity to meet them and learn how they work. When you do interview the attorneys, do not be afraid to ask them difficult questions to help you determine if they are a good fit for you. Many books include guidance on questions to ask your attorney including, The Collaborative Way to Divorce. Make sure that each attorney that you interview provides a description of the main process choices described above and make sure they describe their experience and training in each of these areas. Attorneys, like most people, have preferences and biases and their description of the three basic options can be filtered by their own preferences, rather than being based upon actual experience. If, for example, your attorney has not had significant experience in mediation or Collaborative Law, their recommendation may be based on third hand accounts of information or bias, rather than actual expertise. To find attorneys who have experience or expertise in Collaborative Law and mediation, go to www.collaborativelaw.org or www.divorcechoice.com.
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513648211-sadness-today-gettyimagesIn divorce many people hire attorneys with the hope of receiving what the law entitles them to receive.  They focus on their rights and ask their lawyer to help them get what “the law” provides, perhaps believe that this is the best way to protect their interests.  Most people don’t realize how focusing on the law and “rights”  is setting the bar very low and on occasion, guarantees them that they will need to settle for the very minimum  rather than trying to achieve their most important goals. Divorce laws are created to establish minimum standards for the government to apply if the family cannot come up with a solution on its own. For example, the child support guidelines give you an idea about the minimum amount that would be required for the support of your children if a judge is required to intervene.  The property division that your lawyer tells you will be ordered under “the law” merely describes the minimum that the law will compel.  The parenting schedule normally describes the minimum times that you must be allowed to see your children. Nevertheless, it is a curious  aspect of divorce law that people often start out focusing on those minimums and do not stop to reflect on what might be possible. Striving for minimums is an unusual way to begin down any path, particularly with something as important as family relationships. Outside of divorce, few of us would ever think that we should provide only the minimum to our family members. We would rarely respond to needs of our children, or our spouse, or a parent or even an aunt or uncle for that matter, and say “what is the very minimum that the law would compel me to do?”  To the contrary, faced with these situations outside of divorce, we would be drawn to think in terms of doing the right thing; doing the best we can do under the circumstances. Yet, as soon as we enter the divorce world, we automatically assume this “minimum only” mentality and we hire lawyers to fight over those minimums. No doubt some you are thinking that divorce is different because you are dealing with an ex spouse and that the rules of conscience and decency should not have the same sway as with a real family member. But is that really how it is? First of all, if there are children involved, it is difficult to enforce minimums without catching them in the crossfire. Because your children will live in the same house as your former spouse for a significant portion of their lives, there is no way to force your spouse to accept minimums without impacting your children, at least to a degree. In addition, is your spouse, the mother or father of your children, someone who can be immediately relegated to the role of non-relative and allow you to feel a complete indifference to their well-being, (or worse)? No doubt, many divorcing people have found ways to view of their ex spouse in this way. However,  most people,  once they get past the anger, fear or sadness, admit that they do not hold this complete indifference and, in fact, express real caring, and concern for their ex spouse. So, how do we shed the “minimums” mentality and approach divorce by setting the bar much higher? It will take more than one blog to cover the many different ways to create better settlements by appealing to higher standards. But here is a start. Go to www.collaborativelaw.org or to www.divorcechoice.com and find a divorce professional who speaks this language. You may be surprised by what is possible.