Mediation and Collaborative Law are alternative dispute resolution (ADR) models rooted in the principles of interest-based negotiation. In divorce negotiations, many people, lawyers and clients alike, have a very difficult time distinguishing between “positions” and “interests”. When tensions run high, positional bargaining can displace interest – based bargaining very quickly, and often unintentionally. This happens out ignorance, fear of trying something different and even, sometimes, attitudinal indifference on the part of lawyers, “collaborative” in label only. When this happens in mediation or a Collaborative Law case, the alternative nature of ADR is lost, and old-fashion positional bargaining, the strategic and non-transparent, high and low game, is supplanted therefor.
If a couple wises to end their marriage by dissolution , based upon mutual agreements, as opposed to contested divorce, workable solutions must be negotiated. If a couple is prepared to articulate and clarify what is really important, or at stake, in regard to all areas of concern, their chances of avoiding adversarial proceedings are greatly enhanced. The interests in most divorce cases include : what is best for the kids; what arrangements will provide financial security to both spouses? Positions do not speak directly to such concerns, and by their nature, inhibit constructive conversation.
To find answers to the questions which come up in divorce, an opportunity to examine the context of what is going on from each person’s point of view is most helpful. The situation demands inspection from individual perspectives, as well as mutual perspectives, as divorce is a hybrid situation, or state of being, between independence and co-dependence, with aspects of both dynamics in play. Discussions of what previous attempts have been made to address various points of disagreement, as opposed to casting blame on a particular person, and how such attempts have either helped or hindered the situation, are what have been proven to be the best and easiest way to actually bring about positive change. Such conversations, free of blame, and focused on what is really at stake, are what it takes to move on with life with the dignity and respect all divorcing couples say they want. That too is an example of an “interest” and what underlies the choice of Collaborative Family Law.