This article was written by Hance Law Group principal Larry Hance.
Collaborative divorce has its roots in the idea of interest-based negotiation. There’s a foundational 1981 book, Roger Fisher’s Getting to Yes, that forwards the idea of “principled negotiation.” When you have an idea of what is a fixed need and what is a flexible need, you can go into a negotiation knowing what’s absolutely necessary to you. You then, thereby, have a better sense of what acceptable solutions might be in a negotiation, for each of the parties involved.
It’s an idea that became fundamental in the foundations of collaborative law. In an earlier blog article, I discussed the story about two people fighting over an orange, and how the best solution for the parties might not be to cut it in half. This is a perfect example of interest-based negotiation.
Interest-based negotiations work best in collaborative divorces, as there’s a framework to support them in which both lawyers are committed to solving issues without taking them to court. But after collaborative divorce practice introduced lawyers to the interest-based negotiation concept, we quickly learned that mediation and even litigation can benefit from an interest-based approach.
In litigation, interest-based negotiation techniques can help avoid court by showing the parties that there is a solution which meets both of their needs. 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 a solution they might not have thought of.
In some litigation cases, I’ve been able to go to the other party’s lawyer and 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’s a matter of seeing what’s important to the other party, to get some basis for an interest-based negotiation. Then, my client and I can determine what he or she wants, and we have a starting point.
That process can often reveal solutions that we weren’t thinking of at the outset because we didn’t know what it was that the other party really wanted. There’s actually a danger that if we move ahead and proceed with litigation, we might “win” cases while getting our clients something that they don’t actually want.
The lawyers at Hance Law Group will get a general sense of a client’s interests from the very first visit, and then once we’re hired, we start with an intake questionnaire that collects information on the client’s interests, needs, and wishes. From there, we can determine how to best reach those goals. And while collaborative divorce allows us the most flexibility to address them, we can work toward those goals in whichever arena the case is to be resolved.