By Shannon Murphy Barnes, co-founder of North Shore Collaborative Divorce.
Shannon practices Collaborative Divorce and Divorce Mediation in Peabody and Boston, MA.
One of the hallmarks of collaborative divorce is that attorneys and parties commit to using interest-based negotiation over positional negotiation. What does this mean? Why is it important? In traditional divorce litigation, a client tells the attorney what they want; then the traditional divorce attorney will often pursue the client’s “wants” without spending a lot of time digging into the “why.”
A frequent example is that a client will take the position that they want 50/50 custody. The client will often count days, hours and even minutes to assure that they get equal parenting time. The attorney then goes off running to court to advocate for what the client “wants”. This is often detrimental to the family as a whole, as it creates animosity. Usually, the attorney has not taken the time to dig below the surface and find out why the client is taking this position. When a Collaborative Attorney learns a client’s “WHY” both, attorney and client, recognize the client’s real interests; then both can then participate, effectively, in interest-based negotiation. If the parents concentrate on “wants’ they miss the opportunity to explore creative options for meeting their interests. If the 50/50 goal is not met, one party feels like they have lost and the other has won. The truth is, in divorce there is never a winner and a loser and often the person most harmed by the animosity is the child.
Why do so many parents take this position? What is the goal when the parent “wants” their children an equal amount of time? Often, the 50/50 parenting “want” is based upon a sense of obtaining what is fair, to the parent. The parent believes that the fairest outcome is for the children to be shared exactly equally, no matter what. Also as frequently, the same parent will always say that they want what is best for the children, that they want the children to be happy and healthy, both physically and emotionally and that the children are their #1 priority.
How can these things be achieved? In positional “want” based negotiation/litigation, the attorney pursues the only outcome the client has expressed desire for: the equal parenting. But, what about the other interests? What about the children’s best interests? Does 50/50 parenting always meet the children’s needs? Does counting minutes and hours to ensure that the outcome is fair to the parents mean that the best interests of the children are met? The answer is rarely yes.
In an intact family, parents cooperate to make sure their children are cared for, to make sure that their children get to and from school, activities and appointments and to make sure their children are happy and healthy. Can this be true with a divorced couple? The collaborative divorce process uses interest-based collaboration to make this a reality. Discussions will explore the perceptions, emotions, the needs of each party AND of the children to work towards a parenting plan that works for all parties involved: including the children. The team will work together to develop a parenting plan that allows both parents to be equally involved with their children’s care, for both parties to spend quality parenting time with their children and for both parties to be able to meet their own individual interests. Does this always mean exactly equal time with the children? Probably not, but, in the long run it creates a post-divorce family that can function cooperatively and flexibly to raise happy, well-adjusted children.
Interest based negotiation allows divorcing couples to expand their options and create win-win solutions for all involved.
