I have a prediction: In the next twenty years, Collaborative Divorce will become the standard for divorce process in Minnesota.
In my nine years as a family law attorney, the majority of my cases have been “traditional” in nature. Traditional in this sense means that the process of divorce starts with a petitioner spouse who serves a summons and petition upon the respondent spouse. The divorce is either settled along the way or it is litigated all the way to trial. Sprinkled in for the past five years have been Collaborative Divorce cases, in which both spouses choose to work with a Collaboratively trained team (comprised of two attorneys and sometimes a neutral child or financial specialist) and to resolve their divorce in an out-of-court setting. Both processes end with a divorce, but one often results in collateral damage resulting from unchecked animosity and litigation, often referred to as the “scorched earth” approach.
Most family law attorneys with whom I have spoken really dislike these scorched earth cases. Some attorneys are complicit in these cases for myriad reasons. These difficult cases, which take place with heavy court involvement, place a tremendous burden on families, on attorneys, and on the courts. Every case that is filed (and that is not In Forma Pauperis) requires the same filing fee to pay for case oversight. Some cases require only that a judge reviews and signs the final divorce decree, while others languish in courts for years, as court staff oversees countless motions, counter-motions, requests for phone calls, letter submissions, etc.
Many family law practitioners grow weary of endless divorce litigation. Of unpleasant and over-aggressive attorneys (we all have our own “no-fly” list). Of client despair (“So you’re telling me I might as well give up?!”). Of not being paid. This work is emotionally taxing. There is seldom follow-up with clients after a case concludes, even those whom we genuinely like. After all, who wants to hear from the one person most closely related to the end of their marriage (aside from their ex) after the waters calm? Who among us has ever felt concerned about personal safety after working a particularly difficult case involving one party with anger management problems (and possibly an affinity for firearms?)
Yet family law practice has its rewards. Family attorneys have unique skills: we are insightful and often empathetic. We excel at interpersonal communication. We are problem solvers. At our best, we are a helping profession: acting as a guide to clients who are in the dark and often feeling very vulnerable. It is an honor to help our clients through family-related legal problems. The best way to serve our clients is by helping them to preserve their dignity and to make decisions in a way that will not cause them to feel shame or regret years after their matter is concluded. While it is not impossible to have a good family law matter in a traditional context, it is never a guarantee. Cases that start out smoothly can easily become derailed by one misstep: an e-mail that struck the wrong tone (often unintentionally). A poorly timed request. A genuine misunderstanding of intention. I myself am guilty of misunderstanding and missteps.
I have known many family law attorneys who either stopped practicing law entirely or pivoted to another practice area mid-career. Something obviously needs to change and I believe a sea change is indeed coming. I sense that the tide is turning in favor of extended ADR and Collaborative Divorce instead of the nuclear approach that takes a pound flesh from all involved (especially the poor children in these scorched earth cases).
As our Collaborative community continues to grow, I am seeing more and more thoughtful practitioners and many younger attorneys attracted to this process that asks everyone to show up in good faith: attorneys, neutrals, and clients alike. Some matters should not be routed into the Collaborative model. Obvious exceptions from Collaborative practice include matters involving domestic violence, coercive control, and unacknowledged addictions. Most families, however, would benefit from the approach that creates a space for active listening, understanding, and slowing down when needed.
If you are reading this and you find yourself battle-fatigued from traditional family law practice or if you are curious about Collaborative practice, I hope you will take some time to reach out and learn about this unique and wonderful multi-disciplinary community of professionals committed to serving families with excellence and integrity.
I hope to still be practicing family law in 20 years; if I am, I know it will be because I have pared down my traditional family law practice considerably and have prioritized Collaborative practice and other forms of ADR. I will revisit this blog entry and muse on the state of family law practice in Minnesota in 2043, I am certain, with gratitude and hope for families in Minnesota.
Rebecca Randen is a family law attorney and mediator. She practices Collaborative and traditional family law and is based out of Edina, Minnesota. Rebecca speaks Spanish and has represented many Spanish-speaking clients. Rebecca is serving her third year on the CLI Board of Directors and is serving as Board President through the end of 2023.
Rebecca Randen is a family law attorney and mediator. She practices Collaborative and traditional family law and is based out of Edina, Minnesota. Rebecca speaks Spanish and has represented many Spanish-speaking clients. Rebecca is serving her third year on the CLI Board of Directors and is serving as Board President through the end of 2023.
Attorney/Mediator
Randen, Chakirov & Grotkin LLC
rebecca@rcglawoffice.com | rcglawoffice.com
Understanding 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 
While it is possible to file for divorce in Minnesota on your own, without legal representation, it can be difficult to manage, not only legally but also emotionally. Here are some reasons to have an attorney and NOT try and represent yourself:
