Collaborative Family Law Practice Chapter One The Nature of Family Law Disputes by Chip Rose Introduction The reason for lawyers to consider moving to a collaborative model as a means of resolving family law disputes is to create a process that more effectively addresses client interests and produces superior results to those experienced by clients in the adversarial process. Legal counsel's role is critical if divorcing parties are to achieve these objectives. The clients will be looking to their attorneys for direction, guidance and advice. In this context, it makes sense that legal counsel develop some understanding of the nature of the conflict and alternative means for resolving conflict. Certainly, it will make sense, in some cases, for legal counsel to perform in an adversarial way, if that is what the client desires and that is the way legal counsel believes he or she can best satisfy the client's interests. Too often, however, this choice to be adversarial is made not as a result of an assessment of client desires or effective strategy, but, rather, as an automatic response to being hired. If the adversarial model is the best approach in a particular case, then this approach should withstand the challenge of an alternative approach that we will call collaborative negotiation. It is the author's suggestion that, if these two approaches are presented and explained to divorcing clients, an increasing number of clients will make the choice of the collaborative approach as superior in terms of both an improved divorce experience and improved settlement results. One distinguishing characteristic of the collaborative approach is the attention that is paid to the process, including how participants will accumulate information, learn about the interests and objectives of the other party, and communicate with one another. In the traditional adversary proceeding, litigation processes and procedures are created by statutory design. Understandably, attorneys seek to utilize these processes to their respective client's tactical advantage. It is assumed that legal counsel works within the system that the legislature and the courts have created. If one party proposed substantial alternative changes in the process of litigating a divorce, those suggestions would likely be met with a healthy skepticism. In collaborative negotiation, the resulting agreement is a direct product of the parties' agreed-upon process. The design and implementation of a mutually acceptable process that will maximize the parties' potential for resolving the full range of issues in a mutually acceptable and maximizing way is the goal. Perhaps the most effective place to begin our exploration into the world of collaborative negotiation is to first look first at the nature of relational conflict. Perspectives, Interests, Beliefs and Values Individuals in conflict are sometimes perceived as nothing more than the sum total of the positions to which they adhere and from which they are unwilling to budge. If we examine the parties from a process perspective, however, rather than a substantive perspective, we can see the following characteristics to their conflict: Individual perspectives: each participant brings to the negotiation his or her own distinct viewpoint on the relationship, the facts, the issues and possible outcomes; Beliefs and values: each participant has beliefs and values that result from an accumulation of their life experience; and Interests: each participant has interests that are unique to the individual and interests that overlap those of the other party. It is suggested that a key to successful resolution of the many substantive issues associated with getting divorced is the honoring of the parties' individual perspectives, the identification of individual and overlapping interests, and an understanding of the beliefs and values that underlie each participant's evaluation and decision-making. The adversarial process dialogue is characterized by establishing, defending and attacking positions taken by the participants. Position-taking is antithesis of agreement-making. The task of the attorneys in collaborative negotiation is to identify the real interests behind the positions. Relationship Conflict When dealing with conflict arising out of a marriage relationship, there exists both the characteristics described above and the dynamic of the couple's system of communication and relating that they developed during their relationship. Left to their own devices, marital partners facing divorce will commonly revert to using their too well-worn system of "communication" that may itself have led them to their present circumstances. The collaborative process recognizes this tendency as a communication process issue and seeks to help the parties better communicate, in part by redefining and rephrasing their statements, feelings and opinions in ways that are constructive expressions of individual perspectives, beliefs and values and interests. The collaborative attorney learns to assist parties to make constructive statements of their perspectives, interests, beliefs and values free of judgment, criticism, accusation or characterization of the other party. Common Ground - Overlapping Interests and Interdependence While the emphasis of parties in conflict is typically to dramatize their differences, the fact remains that marital partners almost always share significant common interests or common ground as well. By the time the parties have moved into the formal divorce process, they are commonly distanced from each other psychologically, emotionally and physically. Their inability to communicate effectively and their perceived lack of cooperation makes it extremely difficult for them to entertain the notion that they have much in common. But the fact remains that divorcing parties have many common concerns, including, most notably: overlapping interests: From a substantive perspective, marital partners are usually joined financially, having shared ownership interests and debt obligations. Regarding their children, they have shared parenting and financial responsibilities. Typically, they will have shared financial obligations to each other, as well. From a process perspective, they are likely to share an interest in resolving things: sooner, rather than later; cost-effectively, rather than costly; exercising control, rather than being controlled; and, confidentially, rather than publicly. interdependence: neither party can dictate the outcome by imposing a resolution on the other. In this sense, each party has a veto over each and every resolution option. A starting point for attorneys in the collaborative process is to look for and identify such common ground, highlighting common interests, values and desired results. This can be accomplished at the initial stage of a first meeting by the use of a few strategic statements: My guess is that you would each like to get through this process as quickly as possible? or One of the things that is becoming clear to me in listening to each of you is how much you share the highest level of concern for your children. Having identified the overlapping interests, legal counsel might offer encouragement to their hope for a successful outcome by saying, Why don't we explore some solutions that may bring you to resolution as quickly as possible or Let's see if we can come up with some ideas that answer your concerns and that may produce good results on the other side as well. Reaching Agreement: A Convergence of Arrangements Reaching agreement means agreeing on arrangements for the future. It does not mean agreeing on perspectives, interests, beliefs and values or any of the "reasons why" for the agreement. This is a very important concept in the process of dispute resolution. It is helpful to remind the clients that their different perspectives, interests and values are not likely to become similar. Nonetheless, it is possible to find arrangements they can each support for their own respective reasons. Parties in collaborative negotiations commonly come to agree on arrangements for very different reasons. While the agreement may not resolve all the issues between the parties, it will allow them to make concrete progress on specific objectives, reducing tension so that other issues may also be specifically resolved based upon mutually acceptable arrangements. If it were a prerequisite of reaching agreement that parties adopt the other'' beliefs, perspectives and values, divorcing parties would be condemned to perpetual conflict. It is reassuring for the parties to be advised that success does not depend on either party changing and becoming something different from who they are The concept of a convergence of arrangements allows the participants to agree on points that meet individual or mutual interests in what is perceived as a mutually acceptable way. Litigation and the Battle Metaphor In the development of the common law, litigation evolved as a process of resolving disputes and determining "rights" by having an independent jurist, or trier-of-fact, observe the examination and cross-examination of witnesses to determine "the truth." The system was designed to be an ordeal on the theory that the truth was never found easily. Because of the risks undertaken and the need to prepare for this ordeal, the process evolved into a battle. As negotiating in the shadow of this default ordeal can never be separated from the ordeal itself, the negotiating process has historically taken on a sense of battle or war. Lawyers entertain themselves with "war stories" about cases they handled. Reference is made to "destroying" a witness on cross-examination. The courthouse is often the scene of a "showdown" where the parties "shoot it out" in front of the judge. The competitive approach to negotiation is a direct by-product of the litigation process. By contrast, the business of negotiating a partnership agreement is based on the explicit assumption of shared interests and, as a result, there is significantly less position-taking and posturing. It is the competitive assumptions of the adjudicatory process, such as "right" and "wrong," "truth" and "justice," that permeate family law negotiations even though such issues are rarely resolved in negotiation. The competitive focus tends to blind us to understanding the nature of conflict and the most effective means of reaching agreement. The Adjudicatory Process as the Default Process Bargaining in the Shadow of the Law Ironically, the existence of the adjudicatory process is essential to the collaborative process. The latter is a purely voluntary system in which no specific resolution can be imposed on any participant. As such, there needs to be a "forum of last resort" as a backdrop to voluntary negotiations. The legal standards and specific results that the parties believe will be applied to them in the adjudicatory context are highly relevant to their decision-making in voluntary negotiations. Disputants (and legal counsel) negotiate in the shadow of the law or, more realistically, in the context of their respective perceptions of the law. There are other circumstantial "shadows" beyond the law that understandably influence the individual decision-making processes of the parties. The existence of these many variables enhances the possibilities for resolution. The collaborative attorney may cite these factors as reasons collaborating and reaching agreement: concerns about the relational impact of the dispute time concerns cost concerns risk concerns stress impacts on affected others lack of finality uncertain compliance Problems to be Solved Collaborative philosophy views negotiation as an opportunity for problem-solving in which the parties accept the challenge of working together to see if satisfactory solutions can be identified and applied to the issues before them. Traditional problem solving has been described as a seven-step process: Identifying the problem Communicating with appropriate people about the problem Developing a set of alternative solutions Deciding on one of the alternatives Carrying out the action Monitoring to ensure that the action is carried out, and Evaluating the effectiveness of the problem-solving process As we proceed to examine the collaborative family law negotiation model in detail, we will see that it is structurally very similar to the traditional problem-solving technology utilized in education and the corporate world. The challenge is for us to assist divorcing parties to be at their best not only on the job, but also in negotiating through the many challenging and life-defining issues associated with divorce. Compromise Negotiations versus Integrative Negotiations Although regarded as a virtue, the compromise concept as it is frequently applied in negotiations, Let's just split the difference and meet in the middle, has some serious drawbacks. Such bargaining often causes each side to assume initially inflated positions to bargain from. The compromise solution may be watered down or weakened to the point where it is will not be effective. There may be little real commitment by any of the parties. Still, there are times when compromise makes sense, such as when resources are limited or a speedy decision needs to be made. Integrative negotiations involve parties paying attention to the full range of interests and abilities that each of the negotiating parties may have to offer the other. Each individual's interests, positive intentions and desired outcomes are thoroughly explored in an effort to solve problems and reach agreement in a maximizing way. Participants are expected to modify and develop their original views as work progresses. Any and all solutions are possible. Rather than seeking a compromise between our symbolic positions, integrative negotiators seek to understand the full range of each party's motivating interests and the parties, together, seek solutions that will most fully satisfy those interests. For this approach to be practical and successful, two things must occur. First, the attorneys must make a mental shift away from the competitive, adversarial view of their roles as representatives of their clients. This is not an easy thing to do and it is harder to do the more years of training and conditioning one has had in the field. The reality is, though, that the clients have no idea how to be collaborative. So, if their representatives are not capable of leading them through the process to the solutions, it simply will not happen. In this context, being collaborative does not mean simply agreeing to meet in four-way meetings and assuming it is nothing more than a settlement conference scheduled much sooner in the case than usual. Attorneys should have a concept and understanding of what it is they are trying to do for the clients. The second thing that must occur for the process to be deemed successful is that the parties must experience their real needs being clarified and addressed, and they must experience an evolution from being fearful and anxious to being informed and resolved. This part of the dynamic begins with assessing, clarifying and evaluating the needs of the parties as they enter the process. The evolution occurs naturally as the attorneys design the process of developing all necessary information, identifying and analyzing all possible solutions, and facilitating the parties communication process strategically and effectively. Artificial barriers to negotiating mutually agreeable outcomes are removed. The success of the process depends on the commitment of the clients to seek agreement and the skill of the attorneys to create opportunities for the clients to experience success. Order Collaborative Family Law Practice