The collaborative law model is built around interest-based negotiation. In contrast to positional bargaining strategies common to the family law litigation model, interest-based negotiation starts with a premise that knowing and disclosing the clients’ genuine interests at the start of negotiation allows for more effective and efficient resolutions to be reached. Helping clients to identify and articulate their true interests, however, can be challenging for a number of reasons. Many clients struggle to complete the task of drafting their interests and concerns as they begin the collaborative divorce process, and it can be tempting for attorneys and MHPs to be “helpful” to the clients and rush the exercise in an effort to efficiently prepare for the first meeting and provide support to the clients. Many clients initially come up with some version of the same generic interests: stability and health for the children, financial security for themselves, children taken care of financially, “fairness” in division of assets, and a private and cost-efficient divorce process. While encouraging to hear, these “interests” are not especially helpful to inform interest-based negotiation when we get to the option generation stage of the collaborative process. It is important that we spend time with our clients, both individually and as a team, to help clients identify more personalized and genuine interests.
Sometimes the most helpful conversations attorneys and MHPs can have to help clients drafting their interests are guided by our curiosity and questions we can ask of the client in a one-on-one meeting:
- “Can you talk me through your initial draft of your interests and goals? Tell me what you want your spouse and the team to understand.”
- “What do you believe is the most important decision that needs to be made in the divorce?”
- “What do you believe will be the most difficult decision to be made in the divorce?”
- “What is your biggest fear in the divorce?”
- “What is your deepest hope in the divorce?”
- “One year from now, if the divorce has been settled in a way that addresses your needs, how will you know?”
- “What story do you want your kids to tell about who you are as parents and how you care for them after the divorce?”
- If the client is starting from a more positional stance, why does the client want what they say they want in the divorce? “This particular outcome sounds especially important to you right now, and I am hoping you can help me understand why this is so important to you. What would it mean if this outcome happens? What if it does not happen?”
There is also important information for the team to learn about the clients as they develop their interests. Because interests are usually developed one-on-one with an attorney and/or MHP, we must build time into the team communication and preparation to share early insights and observations can be quite useful to guide the collaborative divorce process. Consider reflecting on the following questions and discussing within the professional team how these observations can guide the team’s planning for the clients:
- How challenging is it for the client to name an interest instead of a position? Has the client spent a lot of mental energy imagining specific outcomes? If so, what purpose does that seem to serve for the client (e.g., sense of security, decrease anxiety, feel in control)?
- How informed does the client seem to be about the daily routine and needs of their children?
- How informed does the client seem to be about the family’s financial picture?
- How realistic are the client’s expectations of divorce outcomes?
- How psychologically and emotionally ready is the client for the divorce? How aware is the client of their spouse’s readiness? In what ways is a difference in readiness reflected in the interests the clients name at the beginning of the process?
- How familiar is the client with the collaborative process? Do they have realistic expectations of the process?
- What additional resources are indicated as potentially needed in the process? (e.g., financial planner, child specialist, therapy referrals)
- How deeply has the client thought about their needs, concerns? Are they able to think about long-term future needs, or are they laser focused on immediate needs?
- How much self-awareness does the client have of their own needs, concerns, and interests?
- How easily can the client genuinely consider the interests and needs of their spouse?
- To what extent can the client differentiate between their own interests and the interests of their children?
Lastly, it is also important for the team to normalize and encourage clients to update and revise their goals and interests and include revisions in the minutes for the meetings. Clients can feel a lot of pressure at the beginning of the process to get their interests “right” before they are shared in the first meeting- we help them feel less overwhelmed when we let them know we assume there will be changes and revisions as we move through the process. It is often said that we do not really know the clients’ true interests until the third or fourth meeting; therefore, the more we invite and encourage revisions the more likely we are working with genuine interests. By ensuring the stated goals and interests are continually accurate and comprehensive, we may be able to not only support the clients to reach a resolution of the legal matters of the divorce, but also help improve clients’ self-awareness and abilities to engage productively in future problem solving with their co-parent.
