negotiation Archives - Collaborative Law Institute

June 12, 2017

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.

April 17, 2015

I am often asked what a “drafting” process for divorce entails. While a full process often has 3-5 professionals, a process for clients who have worked out most of the resolutions on their own, can be much more streamlined. Using an attorney for legal advice and drafting can be a cost-effective and quick way to proceed. Here is how the process typically works: 1. Client hires attorney. In a drafting process, the client should hire an attorney who is willing to take on a drafting role – drafting the agreement and advising the client of his/her legal rights. 2. Client and attorney meet to discuss the resolutions reached. In a drafting process, the clients have typically already reached agreement on property division and cash flow. They have disclosed everything to each other and made decisions about how to divide the property (assets and liabilities) and agreed upon child support and/or spousal maintenance if needed. In this initial meeting, the client provides the attorney all supporting documentation and discusses the agreements reached. The attorney advises the client of the legal implications of the agreements and either confirms the agreements or discusses potential revisions. Sometimes, the attorney brings up ideas or questions that the client has not yet contemplated. If so, the client can go back to their spouse and discuss these additional matters. 3. Once the final agreements are discussed, attorney can draft the documents. In Minnesota, the substantive divorce document is a Stipulated Judgment and Decree. There are other supporting documents needed, but this is the main document needed. This Judgment and Decree outlines all resolutions that have been agreed upon. 4. Client reviews the documentation. 5. Spouse reviews the documentation and has an attorney review and advise him/her of the legal implications. 6. The attorneys and clients can communicate and revise the documentation as needed. 7. Once finalized, the documents are signed by clients and attorneys and filed. While a drafting process can be efficient and cost-effective, it works best when clients have all agreements in place and do not waiver from their original positions. If the clients learn more about their legal rights and wants to further explore options, it is often best to enter into a collaborative process, where more options can be explored.

April 14, 2015

Almost all divorces end up in a negotiated settlement. (In most states, less than 5% of all divorces actually go to trial.) Therefore, the most important thing for couples to consider, before they start down the path toward divorce, is how to negotiate the best possible resolution to your divorce. When I ask most clients what they want from a divorce process, they almost always talk about two things: 1.) They want a divorce that is amicable. This makes sense. Most wise people would want an amicable divorce; either for the sake of their children, the protection of their finances, preserving their own mental health, or all three. No sane person would choose to have a messy divorce if they can avoid it. 2.) They want to feel protected. At the same time, almost everyone wants to feel some sense of protection. They are entering into important agreements that will impact their lives and, perhaps, the lives of the children for many years. They do not want to sign an agreement that they will resent or regret. These two negotiating goals do not need to conflict with each other. The biggest mistake that people can make is thinking that these two goals are in conflict with each other. They want an amicable divorce but they think the need to hire an aggressive lawyer to protect their needs. Or, alternatively, they think that all lawyers will be aggressive so they avoid getting legal counsel and end up with a settlement that they regret. Contrary to common belief, it is possible for divorcing clients to have the “best of both worlds”. This is the very reason that Collaborative Practice has grown all over the world. The best scenario, of course, would be to have an attorney who will protect your interests and yet preserve an amicable environment. Collaborative Attorneys are trained in non-adversarial negotiating strategies and they are retained for settlement purposes only. Because they focus on settlement only, they work to help your spouse to “say yes” by using interest based methods that help you get better outcomes, without creating the rancor and expense of using adversarial methods. To learn more about Collaborative Practice, and how it can be used to help you get your best outcomes, go to www.collaborativelaw.org or www.divorcechoice.com.

January 19, 2015

Can you get what is fair in your divorce? Many people start by telling their attorneys that they want what is “fair” in the divorce only to be told that this is not realistic. “Fair is what happens in St. Paul for 11 days before Labor Day” is the common expression aimed at averting divorcing people from striving for a fair settlement. I understand those concerns about “fair”. Divorce can be so emotional that nothing presented as a settlement offer will be regarded as “fair” and settlement discussions can therefore drag on forever. Indeed, if you are faced with a divorce that you do not want, the notion that any proposal is “fair” can seem offensive or even inflammatory. Also, in settlement negations, “fair” is often used as an accusation. “I have offered something fair. Why won’t you accept this?” Of course, in a divorce a husband and wife are likely to have different understandings of fair. Describing your offer as “fair” as compared to your spouse’s offer, (which by implication must be unfair), is likely to feel insulting to your spouse and will not be productive. Despite all of this, I think it may be a mistake to discard notions of fairness altogether. Indeed, while we all have different ideas about what truly is fair, it is important, sometimes even crucial, that certain things seem fair, at least to a degree. A divorce settlement that one or both parties strongly believe is unfair is likely to unravel or create problems if it is not addressed. Indeed, the success and durability of a divorce agreement may depend a great deal on whether the agreement is viewed as fair by the parties. To get an agreement that is durable in the future, it may be important to pay some attention to what you and your spouse perceive as fair. At the same time, in order to get past the gridlock that arguing about fairness can create, it is equally important to be flexible in our ideas of fairness and to work toward getting a better understanding of what lies underneath the feeling of unfairness. If the sense of unfairness has more to do with an unmet emotional need, (which is common in divorce), it may be helpful to seek the assistance of counselors or coaches to help you think of how those needs can be addressed. Similarly, if there is a tangible part of the divorce agreement that feels fundamentally unfair to both spouses for legal or financial reasons, it may be necessary to go deeper into their understanding of the finances or the law to help address some of these fundamental concerns. The great challenge in the divorce world is that, generally, you are dealing with areas of scarcity and loss and narrow definitions of fair can almost never be met. However, for people who are willing to practice some measure of empathy and to work to try to view the fairness through the lens of the other spouse, notions of fairness can be a powerful tool toward finding resolution. For more information on how this can be done, and for professionals with skill in addressing these issues go to www.collaborativelaw.org or www.divorcechoice.com.

May 27, 2014

With so much at stake in a divorce, it is tempting to think about how to “win”. Yet, the grim irony of divorce is that “winning” often leads to poor results. I know that seems like a contradiction, but most divorce lawyers who, like me, have spoken with “winning” clients after a divorce, know that it is true. Almost every “winning” client I have known during the past 30 years of divorce practice has expressed severe disappointment with their “winning” outcome. The real “cost” of a litigated divorce (or even a divorce that settles on the courthouse steps) is so great financially, emotionally and, particularly for children, psychologically, that there truly are no winners. Does that mean that, when facing divorce, you should simply “give up” and let your spouse have whatever he or she wants? Of course not. Because there is so much that matters, you need to get the best possible outcome for you and your family. So, how can you achieve that, without trying to “win” in the traditional sense? By finding a smarter way to get your spouse “to yes”. Getting To Yes is the whole essence of divorce. More than 95% of all divorces end in an agreement (and not a trial), so your divorce is likely to end in an agreement of some kind. Therefore, the entire divorce process is one of seeking ways to get your spouse to say “yes” to the things that really matter. So, how do you get your spouse to eventually “say yes” to the things that are important to you? It is tempting to think that you will get your spouse to “say yes” by hiring an aggressive lawyer to make bold arguments in your favor. Tempting, maybe, but does that really work? Is your spouse the kind of person who will respond to arguments by giving in? Probably not. On the other hand, if you are like the rest of the world, you will need to be much more strategic. The chances are quite good that the best way to get your spouse to say yes is to help them see that saying yes meets their interests. This notion of ”interest based bargaining” is a way to truly “win” without having to make anyone lose. This method of truly “winning” without creating losers is rapidly growing in popularity and is commonly used by Collaborative Divorce lawyers. To find a Collaborative Divorce Lawyer in Minnesota who can explain this to you go to www.collabortivelaw.org.

January 14, 2014

I just finished watching the documentary, Divorce Corp, and I have to admit that I have mixed feelings. On the one hand, as someone who has devoted his career to helping people understand that divorce should not occur in court, or even in the shadow of the courthouse, this movie may be a powerful tool in raising awareness of this very serious issue. On the other hand, as someone who feels dedicated to the truth and who feels a deep commitment to helping people fully understand their options in a fair and honorable manner, I bristled at some of the sensationalism and the broad generalizations made from some extreme examples. To the extent that the movie attempts to show that the problem with our family law system is that it is inundated with corrupt judges, greedy lawyers and dishonest custody evaluators, I need to state very clearly that I do not believe that to be true. Having worked in the family law system in Minnesota for more than 30 years, including two decades in court, I have found that the majority of judges, divorce lawyers and custody evaluators are honest people who care about children. Indeed, one of the reasons I strongly believe that the adversarial system does not work in resolving family issues, is that operating in the shadow of an adversarial system often damages families even when you have good people involved. There is much need for reform of our system and there is a strong need to raise awareness about the alternatives to court. I had hoped that the movie would help people understand the existing alternatives to court rather than focusing almost exclusively on proposing legislative changes. To the credit of the movie makers, they did feature excellent commentary from two very credible peacemakers that I have come to know quite well. Woody Mosten and David Hoffman, two law professors who are worldwide leaders in mediation and Collaborative Practice, gave the movie producers valuable insights on how we can help families find a better way. While very few of those insights made it into the movie, the producers did release a trailer that discussed the benefits of mediation and Collaborative Practice as alternatives to court. An article by David Hoffman also does a good job summarizing many of the shortcomings of the film. As for the rest of the movie, I am recommending that people see the movie and draw their own conclusions. Even if you disagree with some of the exaggerations and proposed solutions, as I clearly did, it will at least get us all thinking and talking about this important issue. If you happen to be someone who is facing divorce, you should not emerge from this moving believing you will have found any answers or even a real grip on the truth of our family law system. Rather, my hope is that the movie will cause you to respect the important question about how to proceed with divorce so that you will seek out reliable information about all of your options. To learn more about Collaborative Law and other options that I believe are not clearly understood, go to www.collaborativelaw.org and www.divorcechoice.com.

November 4, 2013

The following blog was written by Bruce Peck, a Collaborative Attorney. Bruce can be reached at (952) 435-6799 and www.brucepecklaw.com. Some injuries heal as effortlessly as skinned knees on children. Other injuries take longer, and leave scars. Some injuries are so severe they take years, decades or lifetimes to heal, if at all. These are the kind of injuries that happen all too frequently in the realm of divorce. One of the most difficult things to do is to learn how to stop loving someone because they have stopped loving you. Sometimes the best dreams are followed by the worst nightmares. When truth and trust are both violated, the betrayal that can follow is among the most difficult things to heal. While healing is not accomplished by everyone, the possibility of healing is available to everyone. Divorce is a seriously complicated circumstance, because in addition to the loss of the marriage the parties also have to work together, or against each other, to reach a final settlement. When hearts are broken, this can be extraordinarily painful. Falling in love can be awfully simple, but getting divorced is simply awful. If only there was a process that could insulate parties from the damaging experience of a contested divorce. If only children could be protected from the resulting carnage that flows over their parents. If only there was a better chance to heal while going through the divorce process. Well, there is. It is called collaborative divorce, and is promoted by the Collaborative Law Institute. Created here in Minnesota, now taught world-wide, this humane technology, honed over more than two decades through conscientious involvement by attorneys, mental health professionals and financial specialists, has become a highly refined process that supports parties to heal through this challenging time. It starts with the commitment of the Collaborative Law Institute to be and become a healing modality by providing rigorous training to all professionals. The resulting process is a container that insulates parties from the conflict while supporting them to reach principled decisions that become their final decree of dissolution. But it goes well beyond that. Collaborative practice now includes the opportunity for parties take a break before launching into the legal process to assess each party’s readiness to engage in this process. Mental health professionals have become trained in a new paradigm, generally referred to as discernment counseling, which allows parties to talk about where each one is at as they start this process, and consider the possibilities of working on healing their relationship. This process is commonly referred to as reconciliation, which means, literally, healing, not necessarily returning to the marriage. However, when parties are able to heal their relationship they are better able to consider ways in which they might be able to recreate a better marriage. It makes no sense to simply return to a marriage fraught with problems. The primary requirement for such a process to take place requires the commitment of both parties to genuinely exam and explore options before moving forward with the divorce. When parties are unwilling or unable to process through these issues at the end of their marriage, they are left with the prospect of healing by conducting their personal and private autopsy of their marriage, with or without the help of a qualified counselor. This can be quite difficult to accomplish. It requires ethical integrity by each partner to commit to such an undertaking. The collaborative process cannot heal the parties, but it can provide the process by which that possibility might take place. That is no small accomplishment under these circumstances. Sometimes parties that heal their relationship might still decide to move forward with their divorce. When this happens, they are each in a powerful place to facilitate gathering the necessary information and reaching agreements to resolve all the issues. The stress upon each party is significantly reduced and the benefit to children is immeasurable. Usually the overall costs and expenses are reduced due to the ability of the parties to do the work necessary to reach conclusion. It has been said that the Chinese character for crisis is two characters that mean dangerous opportunity. In our western society we are not taught instinctively to look for opportunity, but we know all too well what the dangers are. When we live only in fear we are not very adept at healing. To learn more about this process, and to find professionals trained to provide these services visit us at www.collaborativelaw.org.

October 23, 2013

Part 3: Collaborative Divorce helps create better outcomes by requiring commitment at the beginning of the process. A Collaborative Divorce is one in which the husband and the wife each retain a lawyer for settlement purposes only. One of the reasons that the process works well is that it causes both parties to make the necessary commitment early in the process. Almost all divorce cases, (approximately 95%) settle out of court. However, too often the settlement comes after the parties are near the point of financial and emotional exhaustion, sometimes creating flawed settlements and resentment. Many people reach a point of committing to a settlement only when they are nearly out of money, or they are told by their attorneys or the judge that moving forward will not be successful. These reluctant settlements, while better than a trial, come at too great of a price and can lead to a rocky future for the family. In a Collaborative Divorce, both parties and their attorneys sign a Participation Agreement at the beginning of the process that challenges clients to focus on commitment to settlement before they are financially and emotionally drained. Because both parties are asked to engage their attorneys for settlement purposes only, they are forced to think about their commitment to settlement at the very beginning of the case, and not “on the courthouse steps.” Both clients understand that each of them must make a commitment at the beginning of the process. Early commitment from each party leads to better settlements that are made before financial and emotional resources are fully exhausted. Early and deep client commitment is a big part of why people often get better outcomes in a Collaborative Divorce, since skilled Collaborative Professionals can help them commit, not only to settlement, but to other important matters, such as improving skills in the areas of parenting, communication or financial acumen. However, this is only a part of the equation. In order to be successful, committed clients need to be guided by professionals that are skilled in helping them achieve the best outcomes in this new environment. This information will be discussed in the upcoming blog. However, if you want information on this now, go to www.collaborativelaw.org or www.ousky.com. Read on to Part 4 by clicking here

September 11, 2013

It turns out that dogs are great teachers about relationships. My dog recently taught me that I cannot get him (or anyone else) to do something simply by being right. Being right will not get you what you want in a relationship, and may even drive a deeper wedge between you and what you want. Our family recently adopted Jack from the Humane Society in St. Paul. Jack is a sweet, somewhat shy, dog who started his journey in Alabama. I think about Jack spending time in a shelter in Alabama and then riding in a kennel for the long drive to Minnesota–multiple kennels, surrounded by unknown dogs, poked and examined by well-meaning vets and volunteers and then coming to a new house with new people. So Jack was living a high stress life for at least the two weeks before he came into our lives. One night during his first week with us, I took him outside to pee before bed. Jack had been outside several times that day, but he hadn’t peed. I needed him to pee so we could sleep through the night. Jack was skittish, and easily distracted. Just as I thought he was going to go, a dog in a neighboring house started barking and Jack moved out of position. He pulled on the leash and wanted to go back inside. I knew the right thing for Jack. He would feel much more comfortable all night if he just peed. I bet 10 out of 10 people on the street would agree with me. After 12+ hours, peeing is a good idea. I was tired, and I was worried about him. I became impatient. My voice took on an edge as I got more and more frustrated that he would not do what I was asking. I was right, after all. But it didn’t matter to Jack. My frustration, impatience and insistence only made him more stressed. And less likely to pee. What Jack needed was a way to reduce his stress. Staking out the factually correct position and insisting did not help Jack reduce his stress. This is true for anyone in a relationship. Couples going through a divorce sometimes get hung up on being “right,” but that’s not going to lead to an agreement if the other person is stressed out. Sometimes you have to back off and let the other person relax and reach their own conclusion. We work very hard to minimize stress for everyone in the collaborative divorce process. It helps people reach durable agreements. Jack never peed that night. The next morning, we were both refreshed, the sun was shining and I sat back and let Jack take his time. He peed, and we were both happy.

June 13, 2013

Wow, the phrase “First vs. Second Wives” makes me cringe. There is so much wrong with it, or at least so much to dislike or be uncomfortable about. Let me count the ways (Keep in mind that this is in the context of Spousal Maintenance). It implies that there will be another wife after the first, which is a fair assumption, but still. It implies that the first and second wives will be at odds with each other over money, which is unfortunate and sad to think about. It implies that the husband, at least in his first marriage, is the breadwinner. In our culture of perceived independence and self-sufficiency, it may strike us as dependent and therefore inconsistent with current cultural standards. It uncomfortably reminds us that many spouses, most likely the wife and often for good reasons, give up career and educational advancement, and so their future financial independence and self-sufficiency, to stay at home with children for the benefit of the greater family. Then, if they divorce, they are in big financial trouble without consistent and lengthy financial support from their ex. I’ve seen many couples divorce where the breadwinner doesn’t want to or just won’t acknowledge the homemaker’s non-financial contribution to the family and opportunity cost of being out of the workforce or taking a lower-paying, more flexible job. I’ve also seen many cases where the homemaker never left home after the kids were older, when it would have been more appropriate to find employment, because re-entering the job market was likely the original marital intent. There is an interesting article in Time magazine’s May 27, 2013 edition titled “The End of Alimony” and a short radio segment, along eerily similar lines, on NPR titled “Alimony Till Death Do Us Part? Nay Say Some Ex-Spouses.” The basic premise of each is that there is growing momentum (but I’m not aware of any such movement in Minnesota) to limit Alimony court awards, or what we in Minnesota call “Spousal Maintenance.” The irony cited is that while ex-husbands used to be the only ones against Alimony, now second wives are also organizing to do away with Alimony, which their husband’s are paying to their ex-wives. The result, it is argued, makes for a pretty large constituency which legislators ignore at their own political peril. There is no Spousal Maintenance calculator in Minnesota. Instead it is a case-by-case, facts-and-circumstances analysis. One of the hardest, and grayest, part of the law in divorce is Spousal Maintenance. It often feels like pulling teeth to get a higher-earning spouse to even acknowledge that the lesser earning spouse has any reasonable financial need. Striking a balance to reach a fair outcome is the key. Traditionally trained attorneys, in my opinion, often do a terrible job addressing Spousal Maintenance. Just bringing it up is likely to start a battle that is out of proportion to the reasonableness of the request. That’s why Spousal Maintenance is a great issue to address with a Collaborative Divorce, because at the beginning of a Collaborative Divorce the attorneys and other professionals help the spouses identify their financial resources and shortfalls by analyzing their budgets in relation to their incomes. They also help the lower earning spouse explore their future career options (including going back to school) and therefore their reasonable financial need. The answer is not usually “yes” or “no”, in black and white. The initial answer is almost always “let’s evaluate this”, which is appropriate given the complexity of the question and the importance of the answer.