Thursday, December 15, 2011

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.

Thursday, December 1, 2011

Planning Ahead

Waiting to file until after the holidays. At this time of the year, I have noticed that quite a few people who are about ready to file for divorce have decided to wait until after the holidays. Every year, we get really busy in January and February filing new divorces because people want the divorce, but don't want to mess up the holiday season. It's actually a good idea (usually) to wait. Here's why:

  • If there are kids, they still have a chance to have a nice holiday; if there's fighting, however, that may not work out. Still, why mess up a major holiday and create a bad association with it for the rest of the child's life? Waiting to file for divorce keeps the possibility of kids enjoying the holidays.
  • Taking a little more time gives you time to research your alternatives. Should you try Collaborative Law? Or mediation? Or stay with litigation? How do they work? What are their advantages and disadvantages?
  • You can use a little extra time to gather resources for the radical change that's coming. Maybe you can save some money.
  • You can also use the time to gather financial information and copy records.
  • There's also an opportunity to take pictures of things around the house and elsewhere. Use the time to create some useful records and references.
  • Do a little thinking and planning about what you want to end up with, what you need, what your may want, etc. Plan ahead!
  • Make sure you are emotionally ready to pull the plug on your marriage. Is it really over? Have you done everything you can do, or want to do, to try to save it? For some people, this is a major consideration. If you are not sure, take your time.
So, there are obviously some good reasons to move carefully and slowly right now. If you choose to wait to file, you can still do some research on Collaborative Law -- one of the options for how to get a divorce -- by meeting with a Collaborative attorney.
A good way to start is to find some Collaborative attorneys where you live and research them on line. Check with friends or other attorneys to find out who is recommended in your area. In you live in Tarrant County, Texas, there are a number of good, experienced Collaborative attorneys. By meeting with an attorney now, you can plan ahead and protect yourself. You can also evaluate whether you are comfortable with the attorneys you visit.
Meeting with an attorney early allows you to make a more thoughtful decision on who you hire and how and when you proceed.