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.

No comments: