In Part 1, vortex was defined as: 1) a whirling mass of water or air that sucks everything near it towards its center; 2) a place or situation regarded as drawing into its center all that it surrounds, and hence, being inescapable or destructible. The second definition provides a visual for what many think a divorce “looks like.” While the end of a marriage is emotionally tumultuous and devastating, the actual legal process of uncoupling does not have to be. But, it is critical that you choose a process that promotes healing. The Collaborative Process does just that. Collaboration is a holistic approach to divorce. It can be utilized by couples who are ending either a marriage or significant relationship, or who have a child or children together. Although some people question whether it is an appropriate process when domestic abuse or mental health/chemical dependency issues are present, many others think it can (and should) at least be attempted. If you don’t want to be another “divorce horror story,” the Collaborative Process will likely be a great fit. Collaboration focuses on the future (i.e., the relationship of co-parenting in two homes) rather than the past (i.e. the vilification of one spouse); is a win-win for both partners (rather than a court-imposed win-lose); and emphasizes the well-being of the entire family. You don’t air your dirty laundry in court, and you aren’t (literally) judged. In fact, you never set foot in a courtroom. The negotiation model is interest-based/win-win, rather than positional/win-lose. You pay attorneys to help you solve problems, not argue and keep you stuck in the past. Every family is unique, so every family deserves a unique solution. And if you have young children, please keep in mind they need you present and available. You can’t be present when you are fighting the other parent in court. In Part 3, we will discuss the various professionals in the Collaborative Process and how their expertise can help you avoid the divortex.
If you put two smart, equally powerful people together to solve a problem with no clear right or wrong answer, they will likely come up with at least two possible solutions, and will often disagree on which solution is the best. The conundrum then becomes, which solution will be chosen? Who gets to choose? What is the basis for making this particular choice? Must one solution win and the other lose? Now imagine that the two people trying to solve the problem are getting divorced. The problem solving process now is emotionally as well as cognitively challenging. Collaborative Practice is founded on the idea that two smart and equally powerful people getting a divorce should be given the opportunity to create their own resolutions outside of court. But often the problems that need to be solved in a divorce do not have clear right or wrong answers. In an emotionally charged situation, it’s easy for even the most thoughtful people to become positional and fall into a win-lose mindset, which exacerbates conflict and adds to the emotional and financial expense of the divorce process. Instead of encouraging clients to engage in positional thinking, Collaborative professionals use a process called interest-based negotiation which aims at creating win-win rather than win-lose solutions. Interest-based negotiation explores the interests, needs or values underlying positions. At this deeper level, people can often gain new insights into self and other that help them become more flexible problem solvers. I have Collaborative clients who agreed I could share their story of how interest-based negotiation helped them reach a very creative resolution regarding parenting time. These parents had agreed that a co-equal parenting time schedule would work well for their children. Based on their children’s ages, they were considering a developmentally appropriate 2-2-5-5 parenting time arrangement, in which one parent would be on duty every Monday and Tuesday night, the other parent every Wednesday and Thursday night, and weekends would alternate. But neither parent was really satisfied with this outcome. This co-equal resolution did not feel like a win-win solution; instead, both felt they were losing something important and thus couldn’t agree to this schedule. We needed to go deeper for resolution. Below the surface of the co-equal schedule proposal, some of each parent’s core interests were not being addressed. Dad felt sadness at giving up two Friday game nights with the kids each month. Mom was unhappy about losing two Sunday worship services with the kids each month. These were special family times for each parent. As parents shared these concerns with each other, they reached an agreement that Dad could continue to have every Friday evening for game night, but would bring the kids to Mom’s house later on her parenting time weekends. Mom could bring the kids to church on the Sunday evenings they were scheduled to have weekends with Dad, and bring them to his house after church. These resourceful parents succeeded at reaching a unique and creative solution that would work for their family in the context of the broader parenting time arrangement. And best of all, the primary beneficiaries are their children.
Part 4: Skilled attorneys are essential to a successful Collaborative Divorce. A Collaborative Divorce is one in which the husband and the wife each retain a lawyer for settlement purposes only. When attorneys are required to work for settlement only, it is critical that they have the skill to negotiate successfully without the threat of going to court. Attorneys are generally trained to advocate for clients through use of argument and a variety of legal strategies, including the threat of court. Collaborative Divorce removes those tools from their toolbox, requiring the attorneys to use other, less damaging, conflict resolution methods. While the Collaborative Commitment–the agreement that the attorneys will withdraw if the matter goes to court–is designed to rein in some of these instinctive legal tactics, the withdrawal agreement by itself is not enough. If the attorneys are not skilled in helping clients achieve settlement without the use of arguments or threats, they may fall back on some of these old habits. In those situations, the Collaborative Commitment will not necessarily lead to better outcomes. Collaborative negotiating skill is, in my humble opinion, a rarer and more difficult skill for attorneys than argument and threat. So, how do clients find attorneys who possess this skill? In general, it is a combination of research and intuitive judgment. Through research most clients can find attorneys in their community with training and experience in Collaborative Divorce. In addition, most Collaborative attorneys will provide either free or low cost consultations to allow clients to gauge, first hand, whether they have the commitment and skill required to help them achieve success in a Collaborative Divorce. Finding the most suitable Collaborative attorney is, in many cases, only part of the equation. One of the great advantages of Collaborative Divorce is the ability to work with other professionals who are, in most instances, better suited to help clients achieve the best outcomes, and often at a lower cost. While divorce is a legal process, there are financial, parenting and communication elements that may, in the end, be more important and more complex than the legal elements. Having financial professionals and mental health professionals on the team that help clients achieve success in these areas, could be the most important factor in helping them achieve a better outcome. This information will be discussed in the upcoming blogs. However, if you want information on this now, go to www.collaborativelaw.org and www.ousky.com. Read Part 5, here.
Spousal maintenance, or alimony, is one of the most difficult issues in divorce. How much? How long? Can it be modified? These are the questions that must be answered by divorcing couples. Faced with having to support two households rather than one, money is usually tight. Both parties wonder if they’ll have enough, creating fear all around. Clients ask me, “What would a judge do in my case?” The Minnesota spousal maintenance statute instructs the court to “consider “all relevant factors, including” and lists eight such factors. Predicting how a particular judge will apply the statute in a particular case is impossible. Looking at previous decisions in other cases involving the issue of spousal maintenance can also prove frustrating. Few cases are actually decided by the courts, and the facts in every case are unique, making comparison difficult. Minnesota is not alone in its lack of guidance on this issue. A recent article in the Wall Street Journal reported that several states are currently considering proposals to amend alimony laws. Some of the proposed changes include creating formulas to determine the amount and duration of spousal support. Others call for an end to permanent alimony altogether. While consistency and predictability are admirable goals, I question whether new legislation will produce fairer outcomes. Asking a judge to apply the law can be frightening. Having to live with a third-party’s decision can create resentment. So how can divorcing couples resolve this difficult issue without giving up control of the outcome? The Collaborative divorce process uses interest-based negotiation to guide discussion of spousal maintenance. A financial neutral (hired jointly by the parties) guides them, using the following steps:
- Help both parties identify their goals and interests
- Gather all relevant information regarding income and budgets
- Generate settlement options
- Evaluate settlement options
- Put the agreement into writing
Compromise is a necessary part of life. Differences inevitably arise in our personal and work lives. Resolution of these differences generally takes place through negotiation. The goal of negotiation is to reach an understanding, which means compromise. Is Calvin right? How would you describe a good compromise? Does it leave everybody mad? Is a compromise that leaves anybody mad really a good one? I don’t thinks so. Generally speaking, there are two recognized methods of negotiation:
- Distributive bargaining, also known as “win-lose,” “zero-sum,” and “divide-the-pie” negotiation, assumes that resources are fixed and that future relationship between the parties is unimportant. Everyday examples include buying a house or car.
- Integrative bargaining, also known as “win-win,” “interest-based,” and “expand-the-pie” negotiation, can lead to better outcomes when issues are complex and the parties value their future relationship.