COLLABORATIVE LAW, MEDIATION, ARBITRATION
POSITIONS VS. INTERESTS:
Working with your Collaborative Lawyer to Negotiate Agreement
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.
In exchanging proposals, when one party takes a firm position that the other considers unreasonable, there is a natural tendency to conclude that the party knows that his/her position is extreme and that he/she is just being “greedy”, “controlling”, “unreasonable”, “uncaring”, or “vindictive”. Such thinking drives the dispute to escalate as each party holds steadfast to his/her positions believing that the other person is the problem, creating a contest of will.
When this happens, the parties end up in court arguing their positions to a Judge hoping to “win” what they have decided they wanted. A win becomes proof to them that they were right about the other party being “greedy”, “controlling”, “unreasonable”, “uncaring” , or “vindictive” in the first place. This approach to resolving matters does not bode well for couples having to co-parent when the animosity lingers long after the court case has ended. In these cases, the children suffer.
When the focus is on positions, the problem in the negotiation is treated as though it is a conflict of positions, two people wanting different outcomes. However, the problem is really a conflict between each side’s needs, desires, concerns, and fears which form the underlying reasons for each party’s stated position.
When clients make positional statements such as the one’s cited earlier, collaborative lawyers are tasked with helping to shift the thinking and talking from positions to interests. We do this by helping our clients to discover what it is that is really important to them about what they are wanting (needs); what they hope to achieve in getting what they want (desires); what they are worried about (concerns); and what they are afraid will happen if they don’t get what they are wanting (fears).
In doing so, we may discover that the wife wanted spousal support as she has no income and is worried about how she will pay her living expenses. We also may learn that the husband, who doesn’t want to pay spousal support, is worried about how he would be able to afford to pay all the household bills in the family home after he pays his wife support. By understanding each spouse’s interests, we can begin to brainstorm solutions in considering other available resources, besides income, that could be used to meet the couple’s expenses until the family home is sold. This deeper inquiry into each party’s interests, why each party wants what he/she wants, is the focus of interest-based negotiation. The goal of interest-based negotiation is to reach a mutually satisfying agreement that meets the interests of each party while taking into account each one’s needs, desires, concerns, and fears. This is the approach to negotiation that is used in the collaborative process and which requires lawyers to adopt a different role than what is traditionally expected of them in helping couples negotiate an agreement.
For the reasons described above, lawyers in the collaborative process do not encourage couples to make and exchange proposals or to advance any positions. In fact, the lawyer’s role is to steer clients away from becoming positional. This can seem very confusing to couples who hold on to traditional notions of negotiation mistaking the exchange of proposals as the most effective and cost-efficient route to reaching a mutually satisfying agreement when it isn’t so.
What we lawyers do in the collaborative process is to reframe the dispute in such a way that the dispute is seen as a joint problem to be solved rather than a battle to be won. In the spousal support example, we could frame the joint problem as, “What are the available resources to both parties?” and “How can those resources be allocated in a way that meets both spouse’s expenses?”. With the focus off positions (i.e. spousal support), the couple can now explore other options that wouldn’t otherwise have been available to meet their needs.
The collaborative lawyer’s approach to helping parties negotiate an agreement is to replace swords and shields with curiosity. Curiosity is the means of helping couples explore and express what is important to each clarifying their respective needs, desires, concerns and fears. In this way, options can be explored that are mutually satisfying in terms of meeting both parties’ interests. In doing so, we lawyers also work with our clients to express goals, needs and options in ways that can be heard by the other party. It is important that both sides hear and understand the interests of the other.
In the collaborative process, lawyers do not use the strategies that are employed in positional negotiation such as withholding information and threats of court. Working collaboratively, lawyers are obligated to disclose all relevant information and not mislead or take unfair advantage of the other. Demands and ultimatums are not strategies accepted within the collaborative process and do not form part of the negotiation process.
In the collaborative process, the exchange of proposals is replaced with brainstorming options to explore solutions that meet the parties’ interests. Looking to interests rather than positions allows for more options to be generated. Generating options and evaluating them takes place as a group discussion with both parties’ input rather than through the exchange of correspondence or discussions between counsel. Meetings play a pivotal role in the negotiations throughout and lawyers draw upon their mediation skills in helping to facilitate discussions between the couple rather than dominating them.
Lawyers play a critical role in trying to ensure that couples haven’t attached themselves to a predetermined position, entering settlement discussions to brainstorm options. In order to overcome the tendency to think in terms of positions, information needed for brainstorming is typically given to both parties at the same time in the meeting so as to avoid the trap of formulating positions in advance. Positions are counterproductive to brainstorming options which is why it is so important for couples to resist the urge to determine what each wants in advance. What may appear as the most direct route to reaching agreement can easily turn into a dead end.
Successfully negotiating a mutually acceptable agreement within the collaborative process requires embracing an interest-based approach to negotiation and rejecting the tendency to want to make proposals and think in terms of positions. An interest-based approach offers greater solutions by identifying each parties’ needs, desires, concerns, and fears. Equipped with an appreciation of the pitfalls of positional thinking and negotiating, couples can avoid the traps that lead to impasse with a clearer understanding as to how the collaborative lawyer carries out his/her role in helping clients negotiate a mutually acceptable agreement.