Litigate or Collaborate?
Amy and John Smith are getting a divorce. They are at a standstill over the number of weekday overnight stays their boys would have in each parent’s home. John would like four overnight stays during his week with the kids; the Amy would like all school night overnights, every week.
A divorce case can either go to trial or be settled outside of the court. If you decide to pursue litigation at a trial before a judge, your case will likely take a year before it is heard. Both parties will need enough money to pay their lawyers for at least a year, and the financial drain of a trial can often go on for many years after the trial. Too often, both sides run out of money before their day in court, and nothing happens with their case. One way to speed up the divorce process is to reach a Settlement.
Position-based Negotiating or Collaborative Divorce?
I am a Florida Supreme Court Certified Family Mediator and a big supporter of meditation. However, one problem with traditional mediation is that it takes it often place in a single day, and there’s usually 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 negotiating inevitably leads to position-based negotiating. Position-based negotiating is a win-lose negotiation battle, where each side either wins on an issue or caves in to avoid conflict. If we look at the example of the couple who were stuck on the number of overnight stays, one of the parents may be asked to give up their position — their time with their boys — to advance the divorce settlement.
Collaborative Divorce: Both Sides Heard, Both Sides Win
In a collaborative divorce, we are all in the same room. I represent you, and your spouse has their collaboratively-trained lawyer. We all meet in the same room, and talk through the terms of the divorce.
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 budget, facilitate the meeting, 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, 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
Back to the example of Amy and John Smith. As it turns out, the John wants to continue taking his boys to their Pop Warner football practices during the week. He was one of the coaches, the boys loved football and he loved his time with them. Amy was concerned that the John’s work schedule would interfere with him getting the children to school on time during the week. Rather than fight over the number of overnight stays at each household, the parties 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 kids to football practice, and would drop them off at the Amy’s house after practice if it was her night, or if he had a work conflict the following day. Collaborative divorce allows both sides to communicate the Why behind their interests, and settlements can be reached that improve the outcome for both parties and their children.