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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. calvin and hobbes cartoon 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.
Divorce typically involves multiple, complex, ongoing issues, including parenting, property and cash flow. Divorcing couples, especially those with children, are interested not only in a fair settlement, but also in having a comfortable post-divorce relationship. They want to be able to co-parent their children effectively. Most want to put family members and friends at ease without having to take sides.  They also want to be able to participate in graduations, weddings, holiday gatherings and other social events without the angst that they have seen their divorced friends and family members experience. Traditional divorce processes encourage the parties to take positions on various issues, exchange settlement proposals, and, ultimately, either make compromises or go to trial. Compromises are made and one or both parties are mad. The Collaborative law process, however, uses interest-based negotiation techniques to help them to achieve these interests. Use of integrative bargaining encourages them to express their goals, which more often than not are shared goals. Once the relevant information has been gathered, the parties have the often-difficult conversations about their fears and hopes. They are encouraged to generate and evaluate potential settlement options. Agreeing to a plan for the future requires compromise by each party. But because the compromises follow open, cooperative discussion and are made for the benefit of the family as a whole, they can leave everybody hopeful about the future … not mad.
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Where should I sit? This is a common thought walking into any new room.  This is especially true if you are involved in a legal discussion and emotions are high. In a memorable Collaborative Practice training I attended a couple years ago, the instructor encouraged us to think about conference room space at our respective offices.  We were to think about our seating space from the perspective of a client and also from the perspective of the other participants.  We had a thorough discussion on the pros and cons of where to park various participants and a role-play about seating; who should sit where?  Why? It is a little like solving a puzzle, trying to find the best seating position to attain a comfortable and effective discussion. Should the attorneys sit next to each other and the clients sit next to each other?  Should it be grouped by attorney-client pairs on each side of a table?  Should the clients sit across the table from one another?  Is it better to have the clients sit directly across or diagonal from one another? Does this sound like what you would think a group of attorneys would get together to talk about?  No, this type of discussion is way outside the realm of traditional litigation-based attorney training.  This is the Collaborative way of thinking. Collaborative Attorneys and other Collaborative team members are trained and experienced in thinking not just about the legal aspects of a case, but also the non-legal aspects of the client experience. Seating at a group meeting is just one example. It is quite simple:  when people are comfortable, they are better able to think with a clear head.  These non-legal factors in the client experience play an important part in negotiating successful and durable settlements. It is common for attorneys to say that most of family law is not about the law.  What they mean is that the law is only part of the equation and that emotions and other factors play a major role in resolving a case.  Collaborative teams are uniquely trained to think about and value these non-legal factors in helping their clients negotiate legal solutions.