Couples going through a collaborative law divorce should use interest-based negotiation to determine what they want when dividing assets. Couples who choose a collaborative law divorce seek to find a resolution that works for both parties and allows them to maintain a friendly relationship in the future. One way for parties to avoid unnecessary animosity is to try an interest-based negotiation to divide assets.
What is a Collaborative Law Divorce?
A collaborative law divorce is a process by which a couple agrees to use negotiation and mediation to end their marriage. All parties to a collaborative law divorce, including the lawyers, agree to forego litigation. If either party decides to pursue litigation, the collaborative law divorce lawyers cannot participate.
What is Interest Based Negotiation?
When pursuing a collaborative law divorce, couples should consider using interest-based negotiation to help them determine what they want to ask for when dividing assets and deciding other issues such as child custody. Traditionally, parties use positional bargaining, in which they state an initial position. They then use negotiations to get as close to their original position as possible. Positional bargaining can lead to a narrowing of vision and a refusal to listen to anyone else’s point of view.
Interest-based negotiation is a way to avoid animosity in the asset division process. It helps the parties identify the underlying interests and avoids having anyone locked into a position. Both parties start by defining their underlying interests. Underlying interests are needs, concerns, fears, and desires that people have trouble identifying. Couples begin at the outer layers and work through a series of questions to arrive at their core interests. A mediator might ask the following questions to help a couple determine what they actually want:
- What outcome do they desire?
- Why is that outcome important?
- Will the outcome provide them with the interest they have identified?
For example, if a couple is trying to determine child custody, one of the parties might say they want primary custody of the children. The mediator would then ask why it is essential for the children to be with that party? The job of the mediator, lawyers, and parties to the collaborative divorce is to dig down until both parties determine what they really need and desire and how they can achieve that. Couples should address a full range of issues, including financial, psychological, and emotional needs and child custody arrangements and rules.
