The collaborative lawyer plays a key role in helping couples to negotiate a mutually acceptable separation agreement, which is the ultimate goal of the collaborative process. To achieve successful negotiations it is important for couples to understand the difference between interest-based negotiations, as compared with positional bargaining. A lack of understanding can create significant obstacles to reaching a mutually acceptable agreement in the collaborative process. An understanding of the differences between the two negotiation approaches will also help couples understand the role of the collaborative lawyer in helping them reach their goals.
Typically the concept of “negotiation” in family law conjures up traditional notions of exchanging proposals through lawyers. Proposals are positions taken based upon what each person has decided he/she wants. This approach is known as “positional bargaining” or “positional negotiation”. Strategies are often employed to try to influence the other party to give up his/her position such as making demands, making concessions, holding back information, and using threats of court. The lawyer’s role is traditionally understood as “fighting” to get what the client has decided he/she wants as being fair and reasonable.
When the ultimate goal is to agree on a position that is mutually satisfying, the tendency is to think and talk only about the positions.
Wife: “I want my spouse to pay me spousal support”.
Husband: “I don’t want to pay spousal support”.
The statements above reflect this type of positional thinking and talking. When talking in terms of positions only, the options to find mutually satisfying solutions are limited to the two positions that each party is advancing. The limited options often lead to impasse as neither party wants to give up what he/she wants to reach an agreement.