Getting to “yes” in divorce

Getting to Yes in divorce

Litigate or Collaborate?

 Amy and John are getting a divorce.  They are at a standstill over the number of weekday overnight they each will have with their two boys, ages 10 and 11. John would like to split the weekday overnights.  Amy would like all weekday overnights, every week.   (Weekday = Monday – Friday).  

To resolve their dispute, Amy and John either have to litigate their divorce, or reach an agreement.  If they litigate, it may take a year or more to get their case to trial trial. The financial cost will be high – depositions, children’s experts, and the attorney’s fees.   The emotional cost will also be high.  A long contentious divorce is extremely stressful, and this stress will inevitably pour over to stress for the children.  This emotional cost continues after the divorce, as it is very hard to cooperatively parent after  scorched earth litigation.  

Position-based Negotiating or Collaborative Divorce?

One way to reach an agreement during the middle of a litigated divorce case is through mediation.  In fact the judge assigned to your litigated divorce case may require mediation, before a trial date will be scheduled.

I am a Florida Supreme Court Certified Family Mediator, and I am a big supporter of meditation. However, one problem with court ordered mediation, is that the mediation often takes place in a single day, and there’s often no direct communication between the parties. You and your lawyer sit in one room. Your spouse and their lawyer sit in another. A mediator goes back and forth between the rooms and attempts to negotiate a deal.

This type of mediation often leads to position-based negotiating. Position-based negotiating is a win-lose negotiation format, where each side either wins on an issue, or both parties lose a little bit and settles. In Amy and John’s case, John is demanding half of the weekday overnights, and Amy is demanding all of the weekday overnights.  Either Amy or John will “win,” or the mediator might get the parties to split the difference between their two positions.  

Collaborative Divorce: Both Sides Heard, Both Sides Win


In a collaborative divorce, the divorcing couple and their lawyers meet in the same room.  Meetings are usually topic based, and last around two hours.  

In most cases a Financial Neutral and Neutral Facilitator are also present.  The Financial Neutral is often a divorce financial planner or a CPA.  The Neutral Facilitator is typically a licensed mental health professional, or a mediator with extensive experience in family law. The neutrals are there to help the families form budgets, facilitate the meetings, help with issues regarding the children, speak with authority concerning the financial options and asset distribution, and insure that all parties are respectful. This collaborative structure allows each party to be heard.  It also opens up the range of options available to both parties, and expands the number or solutions that both spouses can accept.  

Pop Warner, Punctuality and Progress

During Amy and John’s collaborative meetings it was determined that John wants to continue taking their boys to their Pop Warner football practices during the week.   John is one of the coaches, and this shared activity is extremely important to John and the children.  During the collaborative meetings it was also determined that Amy was concerned that John’s work schedule sometimes required him to get the children up at 4:00 a.m. On such occasions, the children simply were not getting enough sleep.  

Rather than fight over the number of weekday overnight stays at each household,  Amy and John were able to talk through their interests, address their concerns and intentions, and arrive at a solution that worked best for their children. The parties agreed that John would continue to take the boys to football practice.  John would then drop off the children at the Amy’s house after practice if it was her night, or if John had a work conflict the following day. The Collaborative Divorce process enabled both sides to communicate the “why” behind their interests.  It also enabled Amy and John to work together on a positive post-divorce solution for their children.

Scroll to Top