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.

Prenuptial Agreements

As couples start discussing marriage, prenuptial agreements are sometimes considered for various reasons. There can be a lot of value to be gained by using a prenuptial agreement, but it can also damage relationships if not approached in a sensitive manner. In the February 5, 2006 issue of the Chicago Tribune, Janet Kidd Stewart wrote about prenuptial agreements being used for older couples who get married.

There are a number of concerns that may surface when older couples are thinking about getting married:

• inheritances
• family peace
• creating joint wealth from shared efforts after marriage
• providing for health care
• estate planning
• debts, including medical bills.

Dealing with those issues can be very complicated because of other family members who may become involved. Older couples often have adult children and grandchildren who may become possessive and territorial about the parent's assets. This can lead to conflict and hard feelings between the children and their parent's new spouse, and sometimes between parent and child. Some adult children sincerely believe they need to protect their parent's property so it can benefit the parent, and perhaps rightfully so. Some older couples end up not marrying because of their (or their children's) fears about the financial side of the marriage.

Another option is to work out a prenuptial agreement by using Collaborative law. This is an appropriate use and natural fit because:

• it requires each party to have their own attorney,
• it's based on the goals and needs of the parties,
• it provides for complete disclosure of finances,
• a financial planner often works with the parties to provide expert tax and planning help, and
• the parties work together to reach mutual agreements without one party coercing the other.

One of the greatest benefits is that Collaborative Law forces both parties to articulate their goals and needs and to think in concrete terms about how they want their future to look. The prospective spouses can consider how to manage their investments, life insurance, and health insurance, as well as planning for long-term care for later in life. Using creativity to help them achieve their personal and family goals, couples can resolve financial issues early, keep the peace in their families and establish a firm foundation for personal and family financial security.

How to Avoid Financial Mistakes in Divorce

There was a nice story in Forbes in February 2005 entitled "Top Financial Divorce Mistakes". It listed 9 common mistakes and how to avoid them. The list is actually a good example of why Collaborative Law can really be beneficial. Here's the list with a commentary showing how Collaborative Law fits in.

1. Having unrealistic expectations. That's actually a very serious problem which can sabotage a Collaborative case (just like it does a regular litigated case). If both attorneys, and any other professionals involved, can spot such expectations at the outset, disaster can be avoided, if the party is willing to listen to reason. The case should not be handled Collaboratively if one or both parties have unreasonable goals. One of the good things about Collaborative Law is that the goals and expectations are explicitly discussed at the outset, so there is time for re-orientation or changing approaches. There is a greater chance of uncovering unrealistic thinking by using the Collaborative approach since the expectations are openly discussed at the outset.

2. Not communicating. It is impossible to not communicate with your attorney or spouse in Collaborative Law. There are discussions before and after joint meetings and many cases utilize a mental health professional (MHP) to facilitate communication.

3. Getting into an endless battle. Collaborative law focuses on the future and not on revisiting past battles and issues. An MHP can help both parties avoid re-engaging in old arguments and to stay on track focusing on their goals.

4. Getting hung up on the numbers. One of the key elements of Collaborative Law is interest-based negotiating, rather than positional bargaining that is common in the litigation approach. Parties in litigation often do get hung up on numbers and percentages. In Collaborative Law, the parties work to achieve their goals and strive to create customized solutions to problems where the numbers are secondary.

5. Focusing on the present and not on the future. Using a neutral financial professional (FP), it is possible to understand the present situation, but a sometimes greater benefit is being able to project out into the future, both in terms of your needs and in terms of various means of meeting those needs. The FP is an expert at analyzing the future needs of the parties and can help educate the parties about the opportunities available that are consistent with their goals.

6. Forgetting to assess tax. With a financial professional in the case, it is standard to consider the tax consequences of any alternatives under discussion, something that is not often done in litigated cases.

7. Overlooking important information. The financial professional will make sure the parties provide all necessary financial information and understand it. There is rarely such a person working in a litigated case. A Collaborative case using a neutral FP results in a better analysis of the parties' financial situation.

8. Failing to untangle all joint finances. The parties can have direct discussions to address issues of joint finances and will have the benefit of two attorneys, a financial professional and sometimes a mental health professional who will help them decide whether or not to keep financial ties intact.

9. Failing to take into account the amount of time you'll need to get your career back on track. That is a topic that would ordinarily be directly addressed by the parties, their attorneys, the financial professional and perhaps the mental health professional. In addition, the parties may set up a plan for training and support to cover the likely period of time for re-adjustment into the work force. With Collaborative Law and the team working together, there is a much greater chance of direct action being taken to benefit the spouse who has been out of the workforce.

The Forbes article pointed out some significant and fairly common problems that occur in litigated divorces. They illustrate some of the many reasons why Collaborative Law often is the better option for divorces.

How to Settle Relocation/Geographic Restrictions Issues

One of the most difficult and emotional issues that arises in family law cases is relocation, or moving the children to another area. When both parents have been active and have close relationships with the children, this becomes a very difficult topic to discuss, much less reach an agreement on. Many divorce decrees provide a geographic restriction on the parent who has primary possession of the children. The most common language used in Tarrant County is to restrict the children's residence to Tarrant and contiguous counties (ones that physically touch Tarrant County).

When one parent has not been very involved in spending time with the children, it is easier for the other parent to move the children somewhere else. Sometimes, the non-custodial parent doesn't object. Other times, the non-custodial parent may object, but the court will permit the move with the thought that there is not much relationship to be harmed by the move.

The difficult case is where both parents are good and actively involved parents, and the primary custodial parent has a good reason to be moving, such as a mandatory job transfer. That is the type of case that can probably be better handled by Collaborative Law.

The case could be approached as follows:

1. The first step is to determine the underlying goals, needs and interests of the parties. The goals might include such things as providing quality education, a safe and comfortable home, having extended family around (with various benefits), and maintaining an excellent, active relationship with both parents. In a case like this, it would be helpful to have a neutral child specialist to work with both parties, beginning with developing the goals.

2. The second step is to gather the facts. Is the move voluntary or involuntary? Are there any benefits or any disadvantages to the children? A move could be based on any of the following situations: career advancement, required transfer, voluntary move, a move to meet a child's needs, or a move to take advantage of special opportunities elsewhere, among other reasons. Other factors to be considered could include, among other things, the distance of the move, transportation possibilities, the ages of the children, transportation costs, and how much time or what type of time each parent had been spending with the children.

3. The third step is to generate options. Again, a child specialist could be invaluable here. Among the options for many cases would be: move, don't move, one or both parents take a new job, different transportation methods, different ways of sharing or offsetting the costs, both could move, change custody, change the allocation of time with the children, permit extra time, try
video conferencing over the internet with the children, arrange frequent phone calls or emailing, or change the holiday schedules, among other things.

4. The fourth step is to evaluate the options and negotiate to an agreement. In the course of evaluating the various ideas, new ideas or plans could emerge. The child specialist can be very helpful in this phase as well.

Relocation can be a very emotional topic for involved parents. Collaborative Law provides the structure, assistance and opportunities to work through the difficult issues in a civilized manner that can lead to an acceptable solution that allows the parents to remain on good terms and assures that the children's best interests are protected.

A Resource to Compare Schools

When parents live in different school districts, there must be a decision about which school a child will attend. Many factors can be considered when making that decision. As in many other issues, it can be really helpful to get some objective facts to use to compare schools.

J. Benjamin Stevens, who writes the South Carolina Family Law blog, had a helpful post recently dealing with the school issue. He mentioned the web site, "SchoolMatters.com", which can provide information about multiple schools and compare them. It is a free service provided by Standard & Poor's. The site has information about the performance of students on reading and math standardized tests, the number of students attending and the student-teacher ratio, among other things.

Such objective information can be very helpful for parents working together to find the best educational opportunities for their children.

How to Save Money in a Collaborative Divorce

When people learn about Collaborative Law as they are about to begin the process of divorce, many become very interested in trying it because of the opportunities for creative solutions, privacy, control over the outcome, civility, etc. that are associated with Collaborative Law. Some are a little skeptical about whether they and their spouse can get along well enough to work out an agreement. When a Collaborative attorney explains that the Texas model of Collaborative Law offers the assistance of a neutral mental health professional (MHP), also known as a Communication Specialist or Coach, to help both parties operate at their most effective and cooperative levels, they like the idea, but sometimes worry about the cost.

What we have learned is that the cost of the MHP is a great investment because the MHP helps both parties communicate appropriately and maintain a safe and relatively calm environment. Having a neutral communication specialist during the Collaborative process actually helps meetings be more productive and less argumentative than they could be otherwise. In addition to being more comfortable and satisfied with the process, the parties actually end up saving money.

In a Collaborative Divorce, the phrase, "more is less" really makes sense. By adding another participant to the process, the parties operate more efficiently and spend less time arguing. The time they spend in meetings is productive because they are assisted by the neutral MHP who helps the parties communicate in more helpful ways that advance their own interests. While it may seem personally satisfying to berate a spouse for various faults, those comments rarely contribute to an eagerness for that spouse to want to settle.

There are some potential difficulties even in Collaborative cases with parties who really want the process to work out. Inevitably, there are some tough, emotional meetings that challenge the abilities of the parties to maintain the civility that is a hallmark of Collaborative law. Hiring a neutral mental health professional may be the single best way to save money in a Collaborative Divorce.

(A slightly different version of this posting was previously published in the Divorce and Family Law in Tarrant County, Texas blog.)

What Issues are Appropriate for Collaborative Law?

Many people think Collaborative Law is useful only in cases where both parties are basically in agreement. They think that spouses or ex-spouses couldn't sit down and have civilized negotiations on sensitive child custody or financial issues. Because couples get into arguments on their own, some think that Collaborative Law can't work in high conflict families or where there may have been infidelity or other misconduct. Those people are wrong because Collaborative Law, with its emphasis on looking forward and not spreading blame for past actions, is usually a much better vehicle for resolution of significant issues. Where parties value privacy and controlling their own destiny, Collaborative is a much preferred alternative.

Here are some of the issues which can be effectively resolved with Collaborative Law:

• Divorce
• Annulment
• Prenuptial agreements
• Post-marital partition agreements
• Division and sharing of parental rights, powers and duties
• Child custody
• Child support
• Visitation, including specialized schedules for certain occupations
• Education expenses, from day care to pre-school to private school to college to graduate school
• Alimony/ spousal maintenance
• Property division
• Complex property division issues
• Debt division
• Tax planning
• Paternity issues
• Break-up of same sex relationships
• Modification of existing orders
• Enforcement of existing orders
• Health and life insurance issues
• Disability needs
• Special needs children
• Professional practices
• Family businesses

While this is not an exhaustive list, it does provide an indication of the broad range of issues that can be successfully navigated through the use of the Collaborative Law approach.