One of the principle differences between collaborative divorce and the traditional divorce is the manner in which negotiations are conducted. Traditional divorce negotiations are adversarial; collaborative divorce involves interest based negotiations.
An Overview of How Traditional Divorce Unfolds
In a traditional divorce the spouses establish hard positions on the issues that are being contested in their case. The very nature of the litigation process forces spouses to stake out such positions, so that they have room to compromise, either in negotiations or at trial. In documents that are filed in court, the spouses will specify the court orders they are seeking and the facts that they claim support their positions. These court documents often have the effect of further polarizing the spouses’ positions, making it even more difficult for the couple to resolve their differences amicably.
For example, where the spouses are disputing child custody, each parent will file sworn declarations, containing recitations of past events, to prove that the other parent is unfit to care for the children. Upon receiving these declarations, each spouse’s divorce attorney will prepare blistering responsive declarations, which have the tendency to heat up the animosities that already exist. Once these brickbats of accusations have been exchanged, it is often impossible for the spouses to peacefully resolve their disputes without going to court.
How Interest Based Negotiations Guide Collaborative Divorce Differently from Traditional Divorce
In the collaborative divorce process the spouses, aided by their collaborative professionals, focus on what their real interests and needs are. Instead of being forced to establish extreme positions, and supporting those positions with inflammatory accusations, the collaborating spouses and their collaborative divorce team of professionals discuss the issues in a calm, mutually respectful atmosphere. This enables the spouses to express their honest feelings about the important issues in their case.
How Collaborative Divorce Better Serves Family Members’ Interests
In the example case discussed above, the collaborative process would enable the parents to focus on what is really in the best interests of the children, instead of supporting their positions. The collaborative divorce coaches and the child specialist would assist the parents in communicating their thoughts feelings and in brainstorming mutually agreeable solutions.
By addressing the needs and goals of each spouse, the collaborative divorce process enables a divorcing couple to work out a marital settlement without the high level of acrimony and the resulting expense that is usually present in the traditional divorce.
By Glen Rabenn