Collaborative divorce has at its roots the idea of interest-based negotiation. Robert Fisher’s foundational book from 1981, Getting to Yes, sets forth the idea of what he termed “principled negotiation.” The idea is, when a person knows what is a fixed need and what is a flexible need, he or she can enter a negotiation with a clear frame of reference as to what is absolutely necessary, or “non-negotiable.” From this clarity comes a better sense of what acceptable solutions might be in a negotiation for each of the parties involved.
In collaborative divorces, there is a framework to support interest-based negotiations in which both lawyers are committed to solving the issues without taking those issues to court. After collaborative divorce initially introduced lawyers to the interest-based negotiation concept, we quickly learned that mediation and even litigation also benefit from this same interest-based negotiation approach.
In litigation, interest-based negotiation techniques can steer clear of court by showing the parties that there is indeed a solution (or solutions) that can meet the needs of both parties. After all, not everyone who opts for a family lawyer who only does litigation wants to go to court. A good mediator will also use interest-based negotiation to help the parties find answers they may not have been open to or considered. At that point, settling issues out of court can become a prospect, whether or not it is a probability.
In some litigation cases, I’ve been able to go to the other party’s lawyer and effectively say, “Does it really make sense for these folks to hash these issues out in court? Tell me why your client wants these particular requests. Maybe there’s another way to get them than the way she is asking.” From there, it is a matter of seeing what is important to the other spouse. Then, my client and I can determine what he or she wants in response to what we have learned, and we have a starting point for an interest-based negotiation. This can often reveal solutions that were not apparent at the outset because we didn’t know what the other party really wanted. There is actually a danger, in fact, that if we move forward and proceed with litigation too zealously, we might “win” cases while procuring for our clients something they didn’t know really want or even know they were asking for.
Collaborative law allows attorneys flexibility to address client’s interests, needs, and wishes, all while working toward goals with the least amount of animosity and division. Employing interest-based negotiation techniques is a proven collaborative strategy that establishes the possibility for both parties to feel heard. Feeling heard, or better, understood, can open the floodgates to out of the box solutions, creative problem solving, and at its best, functioning as a team. Interest-based negotiations, in my opinion, should be more readily understood and utilized by all family law attorneys, regardless of whether they litigate or collaborate.
