Proceed With Caution

Sometimes people going through a Collaborative divorce will start to discuss things and negotiate directly with their spouse outside of Collaborative meetings.

Usually, if the topic is something like what time to pick up or return the kids on a special occasion, that's appropriate and it may be necessary.

On the other hand, some people may begin pushing their spouse to negotiate directly, without the attorneys or other professionals, and that can cause problems.  Realistically, the parties are in the Collaborative process because they can't just sit at a kitchen table and work things out.

In spite of past differences, people sometimes drift into direct negotiations. It could be to save money, save time or because things are just going very well at the moment. Other times, it may be a result of a conscious or unconscious desire to control or dominate the partner.

There are several reasons to Proceed with Caution: 

• Things could go badly and damage to the negotiations can occur. The good relationship could quickly disappear.
• Someone might be pushed into a bad decision without the advice of counsel.
• One or both parties may be overlooking legal concerns or options that are available.
• One or both parties may be acting on a mistaken idea of the law.
• Money may be spent or assets disposed of which could disadvantage one or both of the parties.

Keep in mind that the Collaborative attorneys and other professionals have a more objective viewpoint than you and your spouse do. The attorneys and professionals also have knowledge of the law and usually the experience of having handled at least hundreds of cases.

For the best outcome, please be patient and stay in communication with your attorney before you start negotiating on your own.

A Third Option -- It's Not Just a Choice Between 2 Options

In regular negotiations between spouses, most often, if they don't agree, each one has one preferred proposal. When they have equal votes, it's often hard to agree on a choice. A lot of the reason for that is that the choices are usually framed so that one spouse wins and the other loses or has to give up on something they want.

In those type of negotiations, the process usually leads to stalemate or frustration because someone was pressured into agreeing to something he or she didn't really want.

What if there were a third option, or fourth, fifth or sixth option?

Wouldn't that improve chances of reaching an agreement? Wouldn't it also increase chances of reaching a better agreement?

Traditional negotiations usually involve limited options, with the parties dug in to their positions and often fixated on "winning".

Can you see where this is going?

For couples working in the Collaborative Law process to solve problems, there are more options and those can be improved with the help of the professional team.

One reason the Collaborative process works so well is that the attorneys are experienced in Family Law and they work with the common goal of finding the best solutions for both sides.

Another reason: When we bring in experienced neutral financial and parenting experts, that leads to new and better options based on knowledge and years of experience.

A lot of people think they can work out agreements with their spouse to save time and money. In a few cases, that is true. In most cases, it doesn't work out well. In fact, spouses often get angry and stay angry for a while from those discussions that degenerate into arguments.

If the issues or future civility are important to you, maybe you should consider the Collaborative Law process as the means for achieving a peaceful solution.

DIY Divorce Negotiating -- Why it's a Bad Idea!

In an age when more and more people want to "do it themselves" with so many things, people negotiating their own divorces seems like a natural.  After all, who's more interested in the outcome than the parties themselves?  Think of the money they can save by not hiring lawyers, and think of the fights that can be avoided by keeping the lawyers out of it. Plus, the parties either believe they know the details of their case or trust their spouse will share the information. 

Everyone knows Texas is a 50-50 state, right, so dividing things up should be easy. And you can find all the forms for child support and visitation online.

So, what could go wrong?

Although I am naturally an optimist, I have to point out a number of potentially costly problems with the DIY approach. 

1.  You may be misinformed.  For example, property doesn't have to be divided 50-50, and usually there's some variance from that.  There are a number of factors that can affect the division. You may also not know whether something is separate property (not to be divided) or included in the community property.  Some situations are complicated and relying on the internet may not be smart.

2.  You can be bullied. Hopefully, that's not the case, but I have seen numerous cases where one party dominates the other and obtains a very favorable property division, child support order or custody arrangement. That is much less likely when there are attorneys involved.

3.  You may not be aware of the true strengths of your bargaining position.  Knowledge of the law, along with experience, can unlock a lot of options for getting the result you want to achieve.  Some issues are settled and don't need to be re-litigated.  Or, you may be in a weak position and it would be helpful to learn that before you are in too deep.

4.  You probably have no experience with how different approaches work.  For example, you or your spouse may want a 50-50 time sharing arrangement with the kids.  There are several different models used for that purpose and an experienced lawyer can help you understand how they work and which might be best option for you.

5.  Overall, it is better to have someone experienced to bounce ideas off.  You are dealing with serious and very important issues.  Having a second opinion or alternate point of view can help you test your ideas or your spouse's ideas before you agree to them. Take a little time and have a discussion.  What you are discussing will affect you and your children the rest of your lives.

While the tendency may be to favor saving money by doing the negotiating yourself,  that can easily leave you with bad agreements and bad court orders.  What you are going through has such enormous effects on your future that you really need to be smart and get help.  Be smart, not cheap!

Why Negotiating Outside the Meetings is a Bad Idea

Some people will always be tempted to try to negotiate parts of their settlement outside the Collaborative meetings.  Sometimes, both parties want to do it, but most often it's just one of the parties who tries to engage their spouse in talks.

These are people who have been unable to agree on things, often having heated arguments over all kinds of issues. Typically, they have tried negotiating before they hired lawyers. 

Why do they do it?

• Save time.
• Save money by cutting out attorney's fees or professionals' fees.
• They think they understand or know more now and the issues are simple.
• Someone is frustrated with the Collaborative process because it doesn't move at super speed.
• Someone wants to control the process, the other party or the outcome, or all of them.

 Why is it a bad idea?

Although it's not always a bad idea, more often than not, problems arise, such as:

• People going through divorces often don't behave as well together when the attorneys and other professionals are not around. Even when there have been productive meetings and discussions in the process, when the professionals are not around the parties often revert to their old ways of communicating and interpreting what the other is saying and doing.
• It may lead to more arguments and hurt feelings, especially if only one of the parties wants to negotiate.
•  Short-cuts often lead to harmful or bad decisions.  The parties may lack information. One or both parties could lack experience in negotiating important matters.  One side often feels pressured which makes them uncomfortable.
• It could even derail the process if the parties get really mad or get into serious disagreements. 

What should you do if you are tempted to try to work out some agreements privately?

•  Just say NO!  Blame it on your attorney or the other professionals, if you want to, but it's better to avoid it.  
• If this is just a simple matter, it won't take long to handle it at a meeting, so there's no harm and little cost involved.
• Re-direct attention.  Change the subject.  Get your spouse to discuss something different that he or she is interested in and then leave or end the conversation. 
• Put off your spouse by suggesting you need to do some homework on it, which you should do anyway and then go talk with your attorney about it before you negotiate.
• Don't get into a long talk with your spouse about whether it's a good idea. You may end up getting mad or getting talked into something you don't want to do.

Best Advice:  Talk to your attorney first, whether you are thinking of initiating it or if your spouse suggests it.  Maybe it can work, but please listen to your attorney.

Will it Work?

When you hear about some new idea that someone urges you to try out, one of your first questions may be, "Will it Work?". We don't want to waste time and money on something that doesn't stand a chance of working.

It may not work.
Anyone telling you about Collaborative Law will have to admit that there is a chance that the process won't work in some cases.  Sometimes it's because of the parties involved, other times it's the whole context of how the matter is happening.  Many times it can be because of outside forces, such as pressure from family members, time constraints or work issues. It can also make a difference it you choose to work with experienced versus inexperienced professionals.

Failure is rare.
The down side is that if the process is unsuccessful, the professionals have to withdraw and the there's added costs for the parties in getting new attorneys.  The good news is that failure is rare. 

Here are some common circumstances which sometimes unnecessarily scare people away from using Collaborative Law.

1.  One or both parties are mad. Actually, that's not unusual.  These are divorces after all. When we work with a full team, including the neutral mental health professional, communication improves greatly. People end up working together much better because they are surrounded by trained professionals who help them learn better communication skills.  That's an extra benefit of using the Collaborative process.

2. One doesn't trust the other party.  Again, that's common when people get divorced.  Again, trust is managed and greatly improved with the involvement of the neutral mental health professional, the neutral financial professional and two lawyers, all watching over everything. Part of the Participation Agreement everyone signs at the outset is an agreement to be open and honest.  We all also agree to correct any mistakes anyone finds.  This is about the most protected people can be in a negotiating process.

3. Someone believes the other party can "out-negotiate" them.  That's not even an issue because of having the team working together. Plus, we negotiate differently.  We don't use car-buying tactics.  We approach it differently by getting both parties to tell us their real goals, interests and needs. The negotiations focus on meeting the goals for both parties, rather than creating a "win-lose" scenario in which only one party is satisfied.

If you have any of these concerns, please talk with your attorney.  If you are meeting with a trained, experienced Collaborative attorney, your questions will be answered and your concerns laid to rest. While these are common issues, you really should have no problem entering into the process under these circumstances.

Being Realistic --Don't Get Greedy!

There's a lot of pressure when it comes time to resolve a divorce.  Mostly, it's self-imposed, but it is real nevertheless.  A big concern is for both parties to be as financially secure as possible even though you increase expenses by splitting one household into two.  Often the party with less earning power is very fearful about the future.

As a result, sometimes one party to a divorce starts pushing hard to get as much cash or other assets as possible.  Aside from the fact that such an approach is straying from the focus on the goals that was discussed at the first meeting, the parties can easily get into conflict over the money.  That can make it harder to get to an agreement over the broader issues.

To avoid those problems, the parties should always be realistic. Here are some things to keep in mind.

1.  Don't over-reach.  In the Collaborative process, we emphasize that we are not bound by standard guidelines or presumptions.  We start with the goals of the parties and try to find solutions consistent with the goals.  However, that's not a license to insist on unreasonably large shares of the assets.  That could make an overall agreement much less likely if someone appears unreasonable or greedy.

2.  Listen to your attorney and the other professionals.  We and they are on your side.  We are all working together to help everyone reach an agreement.  We try to expand the pie and create win-win situations, but we need you to follow our advice.  Even when we disagree with you, we are all trying to help both parties.

3.  Both parties need to feel good about the  result.  If one side asks for so much that the other side feels mistreated or cheated, the deal will fall apart.  Even while you are taking care of your needs, it is important to think of how your spouse will feel about your proposal.  No one forces a settlement on the other side -- there must be voluntary agreement.

4.  Keep in mind that both parties will have to adjust their standard of living.  In most cases, the parties try to stretch the same amount funds to cover two households, instead of one.  There will be changes for both parties and there won't be as much money available per person as there used to be.

5.  Don't get too complicated.  While there may be many issues on the table, don't try to create such an elaborate plan that it will fail.  Be realistic!  Keep things simple. 

In sum, don't focus exclusively  on yourself.  Think about your spouse and how he or she will react to the solutions you propose.  Be willing to compromise and try to find some points that you can agree to that will benefit your ex.  Goodwill goes a long ways!

How to Negotiate in a Collaborative Law Case

For people starting out in Collaborative cases, their focus is usually on something like gathering information, wondering what to expect or worrying about whether their own needs can be met.  Something that isn't considered too often is now to prepare to negotiate in a Collaborative divorce case context.  Here are some suggestions to help address that oversight.

1.  Learn from the mental health professional (MHP).  You may have some solo time with the MHP and there will certainly be a number of occasions when you are in joint meetings with her or him.  The MHP is skilled in helping people learn to communicate.  Choosing your words carefully, thinking before you speak and learning to listen will all be things you will learn or be reminded of.

2.  Identify goals, needs and interests.  You will be encouraged to focus on the future, not the past, and to work on the important issues.  At the very beginning, you will be required to come up with a list of items that are important to you. These should be discussed with your attorney and then will be discussed at the first or second joint meeting.

3.  Pay attention and respect your spouse's needs.  This is sometimes difficult because spouses often disagree about what's important.  Still, listening to your spouse's positions and considering them can lead to better, more amicable solutions for both of you.

4.  Prepare before joint meetings.  Review and discuss the agenda items and your ideas with your attorney before each joint meeting.  Get advice from your attorney.  Gather any needed information before the meeting and share it with the professionals and attorneys.  Think about what you want to accomplish and consider how your spouse may respond.  Talk it all over with your attorney prior to the joint meeting.

5.  Stay within the lines.  Please don't try to save time and money by negotiating with your spouse one-on-one outside the joint meetings.  That almost always causes problems.  Remember, if you were able to sit down  and have rational discussions, you probably wouldn't be getting a divorce.

Bonus Tips:

• Warn your attorney if you expect problems with any topics or information.  There may be some hot buttons for you or your spouse that need special treatment.
• Ask for a short time out if a surprise or problem comes up in a meeting.  We don't like surprises and don't want either party feeling uncomfortable.
• Listen before talking or acting.  That's basic!

Why You Shouldn't Negotiate with Your Spouse

As a Collaborative case progresses, one or both of the parties often want to "save time" or "save money" by negotiating directly with their spouse, outside of the joint Collaborative meetings.  That's usually a bad idea from my experience.  Why?

Here are some common problems that arise when the parties go off on their own and directly negotiate some aspects of their case.

1.  One spouse often dominates.  That's usually the one who came up with the idea of meeting, talking and getting some quick decisions.  That spouse often tries to pressure the other spouse into agreeing on some issues, and that conflicts with the structure and safety that Collaborative Law offers.

2.  One spouse may have more information.  Usually, that's the spouse pushing to get quick decisions.  The other spouse may be at a disadvantage from lack of preparation and lack of information.

3.  Having the private meetings skips steps in the Collaborative process and the parties lose the advantages of organized information gathering, analysis and brainstorming.  For the party with the agenda, that's not so bad.

4.  There's no referee.  The mental health professional (MHP) is not around to make sure each party treats the other party appropriately.  Things can easily get out of hand, with arguments ensuing.

5.  The parties can easily get caught up in small details and argue over them, rather than considering the bigger issues.  Small issues can lead to big arguments and hardening of positions for future negotiations.

6.  One spouse may feel pressured.  Each spouse already knows how to put pressure on their other spouse.  That can lead to hurt feelings, anger or fear, none of which helps future negotiations.

7.  The discussions can easily become heated.  That can end up moving the parties away from possible agreements.  It's easy to slip back into old patterns of argument when the MHP isn't around to keep the peace.

There's a fine line between necessary communication on minor issues and private negotiations between the parties.  Make sure you don't cross over the line.

Why You Might Want Help in Negotiations

"Do it yourself" is a time-honored tradition for many things. Home improvements or repairs come to mind -- a good idea for a handyman, but not such a good idea for others, like me, without the talent and experience to know what to do or how to do it for projects above the basic level. On the other hand, there are lots of books and videos about how to do things without hiring expert help.

The "do it yourself" spirit has invaded the legal field, encouraged by forms, videos, web sites, blogs, e books and other books. There are also some non-lawyer services that provide help. Many people are willing to take on their own legal matters and it works out well for some of them. For others, there can be significant problems. How do you decide whether to step up and negotiate your own case? Here are some considerations.

1. Do you have the full information? Do you know what you need to know and how to get it? Most people don't, and it can be difficult sometimes, even for experienced lawyers. If you have all the needed information, you may not need help. If you are unprepared on the information, your result will suffer.

2. Is there equal information for both sides? Often, one party in a marriage tends to monopolize the information on all the financial issues or the children's matters. The other party can negotiate effectively only if he or she gets access to all the information.

3. Is there equal bargaining ability? Does one party have more experience or ability in bargaining? Sometimes one party does negotiations at work or has received special training in negotiations and that may give that party an unfair advantage. (It could be you or your spouse!)

4. Is there a power imbalance? If one party always seems to dominate the other, the submissive party is not going to do well in negotiations. Even with a mediator or some other facilitator, one spouse can easily intimidate the other prior to the negotiation sessions.

5. Is there equal motivation for both parties? If one spouse is more motivated than the other, the unmotivated one may get run over.

6. Has there been adequate preparation? One party may be pushing strongly to wrap everything up quickly, while the other may not be ready for a long time. The motivated one may have been preparing for a long time, emotionally and otherwise, and the other spouse may need more time to prepare. Without enough prep time, the negotiations are not going to go well.

7. Is there trust between the parties? There are different levels of trust, but a complete absence of trust and goodwill may doom any negotiations.

Bottom Line: If there are imbalances in the relation of the parties, the dominant one will very likely have a significant advantage in negotiations if the parties try to reach an agreement without using attorneys. Don't allow your spouse to pressure you into agreeing to negotiate if any of the problems above are present. Instead, talk to a lawyer and get some professional help. Attorneys have several methods, including Collaborative Law, available to resolve conflicts.

Other posts have explained the benefits of Collaborative Law. Look into it before deciding to negotiate for yourself. Collaborative Law addresses these issues by cooperatively gathering, sharing and analyzing information. The process involves professionals as neutrals who work for both parties and the attorneys. Any imbalances are leveled out by the professionals so that each party can work to achieve their goals and meet their needs.

You may be making your most important financial, family and legal decisions, and it's not a time to be cheap. Your future is on the line!

Why We Use Interest-Based Bargaining

In Collaborative Law cases, we work hard to get the parties to establish and then focus on their goals, needs and interests. Negotiating with that perspective is called interest-based bargaining. One of the great advantages of Collaborative Law is the emphasis on goals, needs and interests. Instead of taking at arbitrary approach, such as aiming for half of everything, or using state guidelines to set child support or visitation schedules, interest-based negotiations look at what's important to, or needed by, each party. While courts virtually never order everything sold and the proceeds split equally, many people still start out blindly wanting half of everything. Very often, that's a bad solution.

1. Positional Bargaining. While some people start out saying they want half of everything, many others will start from an extreme position so that they can end up at 50-50 or at a slightly more favorable (but still arbitrary) position. Most people going through divorce use "positional" bargaining, either having an arbitrary 50-50 target or starting at extreme positions and not focusing on what's really important to them. That usually involves tunnel vision, looking only at what's in front of them and not considering alternative ways to meet their needs.

2. Other Contexts. Positional bargaining is used in other contexts as well. Many people will buy a house by negotiating the price with the seller. Sometimes it works out, but other times it doesn't because of an extreme starting point or the unwillingness of one of the parties to compromise. Sometimes the negotiations in other situations become heated and inflammatory language is used as a means of getting someone to change their position. Many people just automatically start a negotiation by claiming an extreme starting point from which they plan to move to an acceptable end point.

3. Interest-Based Negotiations. In Collaborative Law, the focus from the start is on what's really important to the parties. We don't have an arbitrary goal, like 50-50, or arbitrary starting point. Instead, we start with something like "having a safe, affordable house" or "being able to finish the job training program", things that are not as quantifiable, but which are clearly very important to one of the parties. Interest-based approaches require a lot of thought and planning, and they encourage creativity in coming up with customized solutions. Receiving half of a pension might not enable a party to pay for job training, but getting alimony could provide the means for that. Traditional litigated divorces focus on a limited field of possibilities. Collaborative Law emphasizes the parties' real interests.

Examples: In Collaborative Law, here are some examples of solutions linked to needs.

• If a party needs cash, there can be alimony or the more liquid assets could go 100% to one party and the other party could get other assets.
• If one party needs more retirement funds, that could be agreed, with the other party getting other assets.
• If there's an odd work schedule, the parties can create a unique possession schedule for the kids, instead of using the standard schedules.
• If a child or a party has special needs, there can be special solutions.
• If a party hasn't worked outside the home for a number of years, there can be a focus on getting support or job training, not just splitting the assets.
  

Anyone wanting a thoughtful divorce should consider using Collaborative Law so they can get the advantage of interest-based negotiating.

10 Tips for Better Collaborative Communication

At all stages of a Collaborative Law case, communication skills are important. How you say something is often just as important as what you say, regardless of whether you are talking with your attorney, your spouse or one of the neutral experts involved. At the outset of a Collaborative case, you can expect your attorney, the other attorney and any neutral experts in the case to have some discussion with both parties about how improving your communication style can improve your chances of success. Conversely, poor communication skills and strategies can sabotage the case. During the course of a Collaborative case, there are usually reminders give to the parties about how they are communicating.

At the outset, and all the way to the end of the case, you should try the following suggestions. Many of them are common sense and you may have even heard a lot of these from your parents when you were growing up. They are still good advice.

1. Look the other person in the eye. While this may not feel comfortable in some situations, failing to do so may lead to your spouse making inaccurate assumptions about what you are saying. "Not seeing eye to eye" is more than a figure of speech. It is often assumed to be an indication of deception. Get some help if that is difficult for you.

2. Answer. If you receive a message or a question, please answer so the other person knows you received it. Ignoring it may lead to various unhelpful assumptions about your silence.

3. Don't attack verbally. Sometimes discussions end when one party gets on a roll and starts criticizing the other party. Even if it's "true", don't attack. It doesn't help at all and it may end discussions.

4. Ask for what you want. Don't wait for someone else to speak up for you and don't think you can bring it up later. No one will be reading your mind. Don't assume that someone will remember what you may have said in the past. Speak up for yourself.

5. Speak factually. Don't exaggerate or make up details. Don't make assumptions about what your spouse or someone else wants or would do or say.

6. Don't be looking at your cell phone while you are in a discussion. Pay attention to just the discussion at hand. Choosing your cell phone over the live person or persons you are talking with is rude and would probably be considered insulting.

7. Respond without engaging in or starting an argument. You don't have to be mean or angry as you respond to what is said. Try to keep things factual.

8. Don't rehash all the history of wrongs you suffered that were inflicted by your spouse. In a Collaborative context, the focus is on the future, not on assigning blame for past issues.

9. Respond directly and briefly. Don't start a tirade because of a comment. Don't change the subject and get off on a tangent. You don't want to pay for long, unproductive meetings.

10. Don't make assumptions or read things into statements. Those are common problems, even in Collaborative cases. Try dealing with statements on face value. Adding assumptions will always cause problems because the assumptions are usually wrong and negative.

Whether you are talking with your spouse, having a discussion in a joint meeting or working with a neutral expert, you will have an easier time by implementing the suggestions above.

Negotiating Effectively: Why You Shouldn't Hurry

One of the most common reasons some people sign up for a Collaborative divorce (or other family law matter), is that they expect it to be a fast process. Relatively speaking, that's an accurate expectation. Compared to how long a traditional divorce takes, a Collaborative divorce is normally much faster, although it isn't always. Most can be finished in three to four months, some sooner and some later. In contrast, a litigated divorce in Tarrant County which is resolved at trial or shortly before trial (when mediation often occurs) will usually take at least a year to finish, and it's not unusual for a divorce to take longer.

Unfortunately, many people going through a Collaborative divorce start feeling the process is slow and bogged down if it doesn't settle in two to three months or if it just requires several meetings. As a result, they start looking for shortcuts and ways to move the process along faster. When one side gets very anxious to settle the case and get it over with, they will usually experience one or more of the following problems:

1. The anxious party tends to give away too much. It is quite easy for the party who isn't ready to divorce, or who just isn't in a hurry, to start to drag their feet and slow down the process. That increases the anxiety level of the spouse in a hurry, which normally leads the hurried spouse to sweeten the pot and offer a better settlement to the other spouse. Over and over, I have seen one spouse maintain a position on settlement terms and refuse to budge, leading to the other spouse moving closer and closer to what the first spouse demanded. Sometimes, the anxiety is self-imposed and sometimes it comes from an exterior source. Whatever the reason, the person making the concessions is often making a mistake and offering more than would be necessary without the anxiety.

2. Hurrying reduces the amount of time to conduct due diligence. When on or both of the parties want to move quickly through the process, the attorneys and other professionals may not have the time to fully explore the facts of the case. Even when the parties both think they know all the issues and both think they understand the information relating to the issues, they may be wrong. It is very common for the parties to not understand various technical issues about assets and debts. For example, they often have mistaken ideas about what to do with retirement funds. The attorneys and the financial neutral need time to gather records and analyze them. Similarly, a child specialist may need some time to explore the issues about sharing time with the children. A superficial review of either property or kid issues can lead to serious problems later on.

3. Another problem is that the parties tend to lose sight of their interests and focus on positions. Often, when the parties get in a hurry, they become very willing to skip over setting and explaining their goals. Even when they have identified their goals, needs and interests, they sometimes stop thinking and talking about them when there is pressure to move quickly through the process. When that happens, they inevitably fall back into positional bargaining, relying on traditional, arbitrary guidelines or percentages, instead of analyzing how to best meet each other's needs.

4. Hurrying usually is associated with reduced listening to the other side. Listening to each other is one of the key values of Collaborative Law. Sometimes just seeing improved communication skills provides a great deal of satisfaction. When a party, who has not been listened to during a marriage, experiences discussions where the spouse begins to listen and speak more respectfully during the Collaborative Process, that party will feel much better about any agreement and it will be easier to reach an agreement. Hurrying devalues listening. The objective becomes primarily to reach an agreement, and true listening bogs down the process. The result is that the parties fall back into old communication patterns, and that usually doesn't emphasize good listening. In other words, the parties stop listening to each other and just try to negotiate the same ways they used to argue. That leads to skipping steps in the Collaborative process and sometimes overlooking options, idea and analysis of facts.

5. The other side may get upset by feeling pressure to finish early, making agreement less likely. Many people, when negotiating, will become very resistant if they feel like they are being pressured into something they don't fully understand or which they may not fully agree with. Some people just automatically start opposing something when they feel a lot of pressure to decide quickly, especially if they are a little uncomfortable or if they don't trust the other party.

As frustrating as it may be for someone going through a divorce, it is usually necessary for one party or the other to slow down some during the process so they can advance at the same pace as their spouse (or the other party). Trying to rush the other party can cause delays or failure to reach an agreement.

And by the way, in a traditional litigated divorce, if one party wants to slow down the process and drag it out for any reason that's easy to do. Collaborative Law is not worse than litigation, in terms of speed. In reality, Collaborative Law generally is a faster means to reaching an agreement than is litigation.

Another View of How to End an Impasse

One of the consistently best family law blogs is the Maryland Divorce Legal Crier by James J. Gross. A few days ago, he had a post about the same subject I recently discussed. Here's his take on impasse.

"What happens when an irresistible force meets an immovable object? A lawyer makes a settlement proposal for a divorce client. The other side sends back a counterproposal, which the client doesn’t like.

'What do you advise next?' asks the client.
'Send back another proposal with some concessions,' the lawyer says.
'What if I don’t want to make any concessions?'
'Then you are at an impasse.'

There are several ways to break an impasse.

(1) Litigation. The ultimate way is to have a judge decide. But this is expensive, time consuming and uncertain in outcome.

(2) Keep Talking. Explore other options to meet the needs of each party. I have been in negotiations where a creative idea just seems to fall out on the table in the conversation that had not been there before.

(3) Segment the Problem. Break the dispute down into separate smaller pieces and try to get agreements on one piece at a time until you have solved the whole problem.

(4) Bring in an Expert. You can bring in an expert to help break an impasse such as a therapist for issues involving children or a financial planner for issues involving money.

(5) Do Nothing. One option is to just do nothing until somebody blinks. Sometimes I have told the parties, 'You are twenty thousand dollars apart and it will cost you each ten thousand dollars to litigate this case. Does anyone have any ideas?' Then I sit in silence for a minute, two minutes, sometimes ten minutes, until finally someone says, 'Well I’ll split the difference if you will.'"

These are some good ideas, at least 2-5 are. The first idea of using litigation isn't a possibility in a Collaborative case. I have used all of the techniques at different times and they usually help resolve the issues in dispute. There are bound to be some other successful strategies for breaking out of an impasse. Does anyone want to share their ideas?

5 Tips for Getting out of an Impasse

Sometimes, no matter how hard you try, it seems like you reach a dead end with your spouse on an issue in a Collaborative Law case. It happened while you were together, and it shouldn't be surprising that it still happens after you split up. You've thought about possible approaches and made plenty of suggestions, but no agreement seems forthcoming. While persistence can be a virtue in some situations, it can simply lead to frustration in others. If you keep trying the same tactics that haven't worked on the same issues, you probably aren't going to reach an agreement. What you need is a change. Here are five brief possibilities to help you get out of a negotiation rut and into an agreement.

1. Expand the pie. Review the situation and come up with some other possibilities. If you have gotten down to a choice between two options and neither party is willing to agree to the other side's choice, then back up and come up with some other choices. For example, if the decision is about who will take care of the children after school, and each parent wants a different grandparent to be in charge, maybe you should come up with other possible caregivers. If you rule out the current choices and look for others, you may come up with another satisfactory choice you had overlooked. Avoid assumptions about how the issues should be decided. Open up your imagination to look for other solutions. Get out of the rut.

2. Expand your point of view. Oftentimes, we focus so much on our own thoughts and ideas that we begin to have trouble understanding how anyone could possibly think another way on an issue. When that happens in negotiations, that narrowing of focus can lead to impasse. One solution is to listen to the other party and then reflect back to him or her what is being said. If you can just put into your own words what the other side is saying or asking for, it can increase your understanding of their position and may open up your thoughts to new possibilities. In some Collaborative joint meetings, it has been helpful to ask each party to state the other party's position on an issue and to explain why the party favors that position. It is also common, in preparation for Collabortive meetings or mediations or just plain negotiations at the courthouse, to have my client tell me what the other party would say about various issues. That helps me understand, but it also helps each client/party who works on that. Greater understanding of the issues and the other party can help lead to agreement.

3. Go back to your broad goals. It is very easy in negotiations to get drawn into discussions of small points. As you get into the smaller, lower-level goals, the options available are reduced and the potential for impasse increases. Sometimes you get off track and spend time on things that are irrelevant or just marginally useful. One way to get out of that trap is to stop the discussion and go back to your goals. For example, if you are stuck in a discussion about whether to take part of a retirement account or keep the house (and its equity), it can be helpful to review your major goals. If one of the goals was to maximize your retirement resources, then you probably need to take the retirement account. If a goal was to keep a stable home for the children, you might want to keep the house. If your goal was to obtain or have access to cash, and if you can realistically sell the house quickly, then you would probably want to get the house and sell it. Without constantly keeping the goals in mind, sometimes parties get into emotional arguments over assets because they "love" the house or because their hard work created the retirement account. The goals are more neutral and should always be the ideal in mind as the parties negotiate.

Another problem that frequently occurs is that you have gone from macro level goals to micro level goals. In other words, instead of trying to create ways to stay in daily contact with your child (macro goal), you get into an argument about whether your spouse must guarantee that s/he will be home at a certain hour (micro goal), rather than looking at it broadly and trying to find as many ways as possible to communicate with your child. Dealing with the issues at a broader level increases the number of opportunities to find solutions.

4. Get professional help. We usually work in the team model, using two attorneys, a neutral financial professional (FP) and a neutral mental health professional (MHP). We sometimes have a separate child specialist. The FP and MHP have been extremely helpful in cases where the parties get stuck. On financial issues, the financial professional can ask the right questions as well as suggest alternative solutions. The MHP can help the process generally by redirecting attention to constructive areas and also by maintaining a safe atmosphere for the parties to express themselves. Being perceived as neutrals gives the FP and MHP much more credibility and effectiveness than they would have if they were linked to just one party.

5. Start with areas of agreement. If you come to a standstill somewhere, you should consider switching topics and working on subjects where you expect to agree. Then you can build some momentum. For example, if you get stuck on how to divide up the bills, you might work on how to divide up the motor vehicles or clarify the holiday visitation schedule or clarify college plans for the kids. There are always some areas where the parties will easily agree, and even reaching easy agreements can result in good feelings and a willingness to cooperate. Of course, that doesn't mean that both sides will agree on everything once they start agreeing, but the momentum can be a helpful force for you.

Conclusiont: It's not unusual in a Collaborative Law case to get stuck more than once. Collaborative Law is not necessarily an easy process to work in, but the results are so much better than in litigation that it is worth the effort. When those times come and you start to realize that you are at an impasse point, try out one or more of the above techniques. They should be great tools to help you reach a successful conclusion for your clients.

How to Negotiate Effectively

A recent post on Human Law Mediation had five great tips for more effective negotiating in mediation. While some of these tips could also improve your efforts in the Collaborative Law arena, the list highlights some of the differences in approach between Collaborative Law and mediation.

1. Plan and prepare in the right way. In the Collaborative context, this would include thinking ahead about what your goals are. How do you see yourself coming out of this process? Think about your major long-term goals as well as some important but short-term ones. Use neutral experts to help you decide what you should focus on. Gather and share all the information you have in your possession on any relevant issues. Thinking and planning ahead can help the process move more smoothly and be less stressful.

2. Listen more than you talk. One way to increase your chances of success is to spend more time listening to your spouse (or the other party). In relationships, it is not unusual for partners to develop patterns of communication where one party tends to be more verbal than the other. Even if you are the more silent one, you may be tuning out your partner rather than actively listening. Having a mental health specialist help with the communication issues can result in both parties listening more effectively.

3. Keep emotions in check. Having a mental health professional involved helps keep the emotions in perspective. While emotional reactions need to be dealt with, they do need to be controlled. You can do a much more effective job for yourself if you can avoid being too emotional. It helps to keep in mind what your overriding goals are.

4. Balance aggression against cooperation. In a Collaborative case, aggression is controlled and avoided. Cooperation is the approach that is acceptable. This illustrates a major difference between Collaborative Law and other types of negotiation.

5. (Generally) make the first offer. This tip relates to "positional" bargaining (often used in mediation), rather than "interest-based" bargaining (a fundamental part of Collaborative Law). In positional bargaining, one side stakes out a position and uses that to try to reach an anticipated result. Interest-based negotiations focus on the actual goals and needs expressed by the parties and the parties work to create solutions that help them achieve the goals for both parties. The thought is that someone can limit or expand the range of possible settlements by making the first offer.