Alternative Dispute Resolution – Mediation and Arbitration

Mediation is in the news a lot lately, especially for divorce, as a more peaceful way to end a relationship. Mediation, however, is not just about ending relationships but part of a growing area of what is known as ADR – alternative dispute resolution. There are several types of ADR, Arbitration, Mediation and Collaboration. Generally ADR is faster and can keep costs down. I’m covering the two types of ADR with which I am most familiar, mediation and arbitration.

Mediation

Mediation is one type of alternative dispute resolution. It can be a part of resolving conflicts that do not necessarily need to end the relationship between or among the parties. Some examples are small businesses (especially family businesses), disputes between contractors and homeowners and landlord/tenant or noise disputes. Often, there is a conflict, but for the sake of the business or contractual relationship it would be better to resolve the conflict out of court and in a way that the business still functions or the contracting job still gets done. As the conflict is kept out of court there is also a confidentiality factor as it is not a public record. Unlike divorce mediation, sometimes there are more than two parties involved in the conflict. There may even be more than two sides with several different positions. The job of the mediator is to help the participants facilitate solutions to their conflict that they will feel comfortable with. This usually leads to a greater and longer lasting compliance with any agreement reached.

Arbitration

Arbitration is another type of ADR where parties argue a case in front of an arbitrator (or a panel of arbitrators) and the arbitrator or panel decides the matter. The parties are entitled to be represented by attorneys. The main difference between arbitration and litigation is that the process is usually shorter and the rules are different from those in the courtroom. There are still rules and you want an attorney representing you that understands that arbitration is not a free for all. I once represented a client in an arbitration where the opposing parties attorney did not know the arbitration rules and much of their evidence was not allowed in because they just brought it to the arbitration rather than following the disclosure rules. Many times contracts have what is known as an “arbitration clause” meaning you are giving up your right to sue in court and have to participate in arbitration. When you have a complicated contract it is advisable to read it and possibly have your attorney review it prior to signing. Aside from representing parties in arbitrations I have been on the other side as an arbitrator. I myself am on the Nassau County Matrimonial Fee Arbitration panel where we resolve fee disputes between attorneys and their clients.

Alternative Dispute Resolution in the Courts

Even within litigation more and more often, the courts are using ADR as a means to try to settle cases to save time and keep the court from becoming overwhelmed. For instance in the small claims court in my area, all parties must go to a court ordered mediator located right in the building to try to resolve their case prior to being seen by the judge. In the Travis county Supreme Court Matrimonial Center sometimes the parties are ordered to go to the court mediator to try to resolve custody issues. The parties may or may not have their attorneys present, it is up to them. Once custody issues are resolved many other issues in the case are easier for the court to deal with.

ADR is an increasingly popular way for people to resolve their conflicts. Let us tell you whether we can help you resolve your conflicts by calling for a consultation today!

Divorce Agreements: Carefully Choosing Your Wording

Many clients wonder why divorce agreements are so lengthy and whether the precise wording is really that important. The length is due to the large number of issues that must be addressed. Maintenance, Child Support, Custody & Parenting Time, and Equitable Distribution are just a few of the topics that must be addressed in a settlement agreement. I’ve seen some agreements that omitted major issues, such as who pays for college, putting both parties, not to mention the children, in jeopardy.

Each section should lay out the parties’ agreement as clearly as possible so that both parties understand what is expected of them going forward. A single word can have a huge impact!

Let’s say two parents agree to “confer” before making a decision about their children’s extracurricular activities. This differs from saying they must “agree” in that conferring merely means to discuss, not to agree. So, where are they if they can’t agree on the activities? Normally, when I draft an agreement in which the parties agree to confer, I include a person or type of person to whom they can go for a tie breaker, such as the child’s guidance counselor or their Pastor, Rabbi, or other faith-based leader. They won’t have to return to court to get a decision this way.

Similarly, the words “shall” and “may” cannot be used interchangeably. For instance, if the clients agree to consult with a bankruptcy attorney, the words “shall consult” make a significant difference. If one party does not consult with a bankruptcy attorney and the other files for bankruptcy, the consequences can be severe.

Even words that appear to be self-explanatory, such as “biweekly,” can be problematic. Biweekly can refer to twice a week or once every two weeks. Which option did the parties settle on? If they meant that one parent would have the children twice a week for dinner during the workweek, it would be better to spell it out so that there is no confusion.

Whether the agreement is mediated or the result of intense negotiations and court time, your goal should be to have your attorney or mediator draft a rulebook that will allow you and your ex-spouse to live in the future with as few gray areas as possible. Because everyone understands the plain meaning of the agreement, “post-judgment litigation” should be kept to a minimum.

This requires some writing ability as well as a lot of discussion. Take the time to read and understand your contract, and ask your lawyer to explain any clauses that you don’t understand. Only then can you sign with certainty!

Mediation of Estate Issues

Earlier this month, I had the pleasure of attending a continuing education class on the use of mediation in Estate cases. Having been drafting estate plans for years and also being an experienced divorce mediator, I pondered whether mediation might be preferable to litigation in situations where a will contest is imminent. After attending the class, I now know that not only is mediation preferable, the Texas office of court administration is beginning pilot programs for people to try mediation as a way to settle their disputes. It was stressed that the public needs to be educated on the benefits of mediation which are, self determination, lower cost and the preservation of family relationships.

I asked a question of the presenters as to whether adding a mediation clause into the will would be effective. In other words, should a beneficiary file an action when there is a mediation clause, would the court recognize that the testator’s wishes were that the beneficiaries get along and had wanted them to try mediation prior to filing a court action. The answer was a resounding yes!

There are a number of reasons to include such a clause in the will. When leaving unequal amounts to your beneficiaries in the past an interrorum clause was usually the only way to go. Although such a clause can still be part of your will, the mediation clause may help the beneficiaries not only get along better, but also divide the estate according to what they feel is fair. For instance, sometimes there are unforeseen circumstances where the beneficiaries own status changes such as divorce, illness or loss of a job. The beneficiaries may know that the testator based their decision on facts which have changed and perhaps they would have updated the will had they been able.

Another reason to attempt to settle the dispute using mediation rather than filing a will contest is that the estate assets won’t be wasted on a legal battle. 1404 Examinations (depositions), attorneys and time spent in court can prove costly and everyone will have to pay more.

Lastly, mediation usually provides a faster resolution so that everyone can move on, hopefully on good speaking terms!

How to Get a Divorce Austin

Most couples go into marriage thinking that their marriages will last a lifetime.

However, for reasons they may fully understand, some couples find that getting a divorce is the best solution to ending their pain.

If you are wondering how to get a divorce, it may be comforting to know that the process of getting divorced does not have to be complicated. However, this process involves many legal implications.

The first step is to decide if you really need to get a divorce. You can try everything possible to keep your marriage together through advice from therapy groups, your family, friends, or the clergy.

If you have children, you can try your best to work things out. If it is not possible to save your marriage, you can go ahead and start divorce proceedings.

It is important to hire a reputable divorce attorney to provide you with advice and proper counsel on how to get a divorce. This is especially the case if you have been married for a relatively long period of time or if
you are filing a contested divorce.

If you are able to come to an agreement with your spouse, both of you should hire an independent lawyer to prepare all documents before you sign them. Not doing so can have long-lasting consequences and are very difficult to get changed later.

It is also wise to have occasional consultations with your lawyer because he or she will negotiate with your spouse’s lawyer. The details that you need when filing for divorce include full names, social security numbers, and addresses of both
parties, full names, dates of birth, and social security numbers of all the children as well as their grades and schools in addition to the county where the marriage took place and when.

Other details that might be required are copies of any domestic contracts such as prenuptial agreements, information about previous
legal proceedings between you and your spouse or those involving the children, and particulars and dates about any previous attempts at reconciliation, separation, or marriage counseling. The other details required when filing for divorce include yearly tax return records, information about your current income, and a list of the assets and liabilities of both partners in a marriage.

Divorce actions are initiated when a Summons is served upon the defendant, who is in this case, is your spouse, briefly stating
why you are seeking to get divorced and a brief outline of what you are seeking
such as child custody, division of marital property, or interim support.

Your spouse will then need to file an answer to the divorce petition.

After you and your spouse sign your divorce agreement, the required affidavit, and other required forms, these documents will be submitted to a court for review. If they are in order, they will
the judge will sign the divorce decree and your marriage will be over.

Of course, contested divorces require many more details.

How to File for Divorce Austin

After years of living together, breaking up can be pretty hard for you and your spouse. It does not matter what the reason for the break up is, loss of spark in the marriage, adultery, or whatever. Things can become truly complicated if you have children especially young ones who cannot understand why their parents are breaking up. This is the time when you truly need the advice and support of a third party like a qualified divorce lawyer, to tide things over the rough patch in your life. When it comes to breaking up with your spouse and how to file for divorce, hire a truly compassionate, understanding, experienced, and qualified divorce attorney.

Someone who has handled scores of divorce cases might be well-versed and experienced enough in winning the legal case in your favor. It will not matter how complicated your case is. Things can get rather nasty if a lot of money and property is involved. Your spouse may want a huge share of everything, property, money, jewelry, or whatever. He or she may ask for the sole custody of your child or children too.

By hiring a highly qualified and well-experienced attorney, you enjoy better chances of winning the case in your favor. Since your lawyer will not know what you want unless you tell him or her, make it a point to talk to him frankly and openly. Do you want full custody of your children? Or would you prefer certain visitation rights? All that matters is what you truly want. Do not worry about what the lawyer or others might think of your requests, even if you want more than 50 percent of the total assets as a divorce settlement.

A divorce can be pretty painful. The loss of your partner means you need to move on with your life, perhaps, with the hope of finding a new and more compatible partner. So think hard about what you want and express it openly to your divorce lawyer. Some people think that the lawyer is merely there to file the legal suit and win the legal case in their favor. But in truth, the divorce attorney plays a number of other roles too.

He is the rock to rely upon during the highly emotional period. Many divorce lawyers support their clients emotionally, morally, and even psychologically during the rough patch in their lives. When it comes to breaking up with your spouse and how to file for divorce, if you are not sure of what you want out of the divorce, get valuable advice from your divorce lawyer. But in order to do so, you need to find a lawyer who is not merely qualified, experienced with the right credentials to give you the best shot at winning your case but who is also known for his compassionate or understanding nature.

By talking to the lawyers, you will be able to gauge whether or not they can give you the understanding or compassion you need to tide things over during this very rough patch in your life.

Tips for Successful Divorce Negotiations

Part of what you will be doing as you use the Negotiated Divorce system is negotiating an agreement with your spouse.  Negotiation is difficult under the best of circumstances, but in the context of a divorce where emotions run high, it can seem impossible.  The Negotiated Divorce system provides you with extensive written and video instruction about how to work toward an acceptable resolution with your spouse. The following guidelines can improve your chances of successful negotiation beginning right now.

Wait to negotiate about any issue until both parties confirm that they feel they have all the information they need to make informed choices about that issue.

Jumping the gun and trying to negotiate before information-gathering is complete is counter-productive.  Imagine that I offer to sell you my watch.  The price is $5,000.  I tell you that it’s a great deal, that you won’t do any better than what I’m offering, and that you’ll regret it if you don’t take it now – this offer is only good until 5 p.m. today.  Oh – and you have to decide with only the information you already have about it.  I can’t wait for you to gather any more information.

Can you do it?  Probably not, unless you’ve secretly had your eye on my watch for some time, know it’s in good working order, and have researched the issue thoroughly to know what you would have to pay for it if you bought it elsewhere.  You don’t have enough information to evaluate my offer, so you can’t accept it.

The same is true for negotiations in divorce.  I can make you the greatest settlement proposal in the world, but if you don’t have the necessary information to confirm my claims and underlying assumptions, you have to turn me down.  You’re suspicious of me because I’m trying to force you to decide right now, with no additional information; my feelings are hurt because you don’t trust me and you’ve turned your nose up at my great offer.  Chances are good that when you do get the information you need and you want to accept my offer, I’ll no longer be willing to complete the transaction, which may well have been a really great deal for you.  Or you’ll see my great offer as an opening bid and try to talk me off the price, which will offend me.  Waiting until information-gathering is complete on any given topic is the best way to proceed.

Do not surprise your spouse by trying to talk settlement when he or she is not prepared for it. 

You may have the world’s greatest idea, but if you try to pitch it to someone when they’re trying to wash the dog, or cook dinner, or work, it will probably not be well received. Make an appointment with your spouse to talk about specific issues for a limited amount of time.  Divide the process into small, discreet tasks.

Settle all issues at one time.  

Many couples who try directly negotiating their divorce settlements fall into the trap of making piecemeal settlements.  They will make what they think is a stand-alone agreement that meets some of their overall goals.  The problem with this strategy is that there will come a time when one spouse has satisfied all of his or her goals.  This person then has no incentive to continue to help the other person meet his or her remaining goals.  This often leads to an unraveling of the deal, leaving parties worse off than when they started, because now someone feels they have been betrayed or tricked.  The better practice is to make tentative agreements – “Assuming we can work everything else out to our mutual satisfaction, then we agree that we will divide our financial accounts as follows.”

Use Structured Settlement Discussions

Settlements negotiated directly between spouses will work best if they follow these guidelines:

  • Make an appointment with your spouse to negotiate for a limited amount of time.
  • Meet at a place that feels neutral to both parties, and where you’re unlikely to be interrupted by your children (or anyone else you might know).
  • Identify in advance one or two topics that will be discussed, then stick to those topics.
  • Agree that if anyone feels uncomfortable (for any reason or no reason) the discussions will stop with no questions asked.
  • If you make an agreement, write it down in simple terms that both parties feel clearly outlines their deal.
  • If you don’t feel comfortable making an agreement on the spot, consider making a commitment about when you will be able to make a decision.

So, the conversation inviting your spouse to a negotiation session would go something like this:

HUSBAND:   Will you meet me at Starbuck’s for an hour on Tuesday to talk about how we’re going to divide up the Christmas decorations?

WIFE: That sounds like a good idea.  Can we also address the children’s summer camp at the same meeting?

HUSBAND: Sure.  How about 2:00.  We’ll be done before 3:00 so I can pick up the kids at school.

WIFE: Perfect!

If it’s an uncontested divorce, don’t play the Ultimatum Game

Although the situation between economically distressed Greece and its European lenders changes daily, as they approached one deadline, European leaders gave Greece an ultimatum: Agree to an extension of the bailout program or lose the funding Greece needs to avoid default and exclusion from the Eurozone. They made a vague promise to renegotiate the original terms of the austerity program at a later date, but it was essentially a take it or leave it offer. Rather than acquiesce, the Greek finance minister reacted angrily: “…nothing good has ever come out of ultimatums. I have no doubt that in the next few days any notion of an ultimatum will be withdrawn.”  The new Greek government maintains that the austerity demanded of its people in exchange for the original bailout devastated the Greek economy and imposed untold social damage. It argues that if the European Union wants a chance of recovering its loans to Greece, it must loosen the austerity terms so that the economy can grow again.

But why would Greece reject the European lenders’ commitment to distribute billions of dollars of desperately needed funds when the alternative is bank runs, bankruptcy, exclusion from the Eurozone, and possible social chaos? At first glance, the Greek response doesn’t seem rational: the proposal provides needed breathing room and a commitment by the European lenders to ease the austerity terms in future negotiations. While the reasons for the Greek reaction are politically and economically complex, the simple explanation is that the Greek government views the European lenders’ proposal as unfair.

So what does this have to do with lawyers negotiating a divorce or couples pursuing an uncontested divorce online? It’s the issue of fairness, or at least what the parties perceive as fair, and how it can propel or stall a negotiation.

Using an experimental procedure called the Ultimatum Game, social scientists have demonstrated that people’s perception of unfairness will lead them to turn down a sure gain. Here’s how it works: the subject must decide whether to accept or reject an offer for a portion of a fixed amount, say $100, which is to be split between the subject and the offeror. The offeror decides how the money is to be split, but if the subject rejects the offer, neither receives any money. There is no second round, that’s the ultimatum: take it or leave it. The offeror might propose a fair split (e.g., $50 each), or an unfair one (e.g. $95 for the offeror, $5 to the subject). In either case, the subject receives more than he or she had at the beginning of the exercise. $5 is better than $0. Right?

Actually, no. The results of these experiments show that even though getting a small amount is better than getting nothing, the rejection rate for offers perceived as unfair (generally 30% or less of the total amount being distributed) is very high.

Why? Because humans value more than an economic return. Civil conduct, following social norms, and reaching a social agreement is important to a society’s and an individual’s well-being.  From that perspective, turning down an unfair economic offer is not irrational at all; it is saying that there are other interests at work which the offeror must also take into account.

The Ultimatum Game being played by European lenders and Greece on the international stage rather than in a social scientists’ laboratory provides a lesson for divorcing spouses: In instances when there is no Plan B or rejection of a take-it-or-leave-it offer will lead to dire circumstances (e.g., litigation), an offer that leaves your spouse better off but is perceived by him or her as unfair is likely to be rejected, even when considerable cost attends the resulting outcome. If you plan to make an offer, anticipate what he or she is likely to perceive as fair and be prepared to explain why your offer is, indeed, fair. And if it’s not, change it.

Divorcing Couples Log Roll Their Way to Agreements

When divorcing couples use an online divorce service to manage their divorce without the help of lawyers, they sometimes ask: “We’ve got some tough issues to settle, but we don’t want to make it worse by bringing in lawyers to argue. How do we get started?” It’s an excellent question—and fortunately, there are some good precedents from everyday life that divorcing couples can follow: Athletic coaches conduct warm-up drills, parents encourage baby steps, teachers start with the basics, and negotiators log roll.

In other words, start small, build momentum.

To understand the concept of logrolling, consider this example from international diplomacy. When disputing countries begin talks aimed at reducing tensions, they often start with agreements that are simple and low risk, such as arranging for their artists to work together or for their medical professionals to train one another in specialized services—relatively low-risk exchanges requiring minor, non-threatening concessions. By doing so, they get the log rolling; that is, building positive momentum before tackling the tough issues to come.

These experienced diplomats understand that an effective way to build the conditions necessary to resolve complicated issues is, to begin with, less important ones that will yield easily to compromise. Doing so injects optimism into the negotiation, sets precedents for future compromises, and builds trust.

So how can couples who are using an online divorce service logroll their way to settling disagreements?

Consider the problems of deciding how custody of the children will be divided over the summer break or how responsibility for paying off credit card debt will be shared, even in uncontested divorces. Such issues can be difficult to resolve when a divorcing couple feels strongly about what’s at stake and anticipates having to wring tough concessions from one another to get what each wants. To build positive momentum, it helps couples in this situation to settle less complicated issues before tackling the tough ones. For example, a divorcing couple with young children might first decide who will bring drinks to the next soccer game, agree upon a good time to have the next parent-teacher conference, and arrange for one parent to take the children to the next dentist appointment. A couple with difficult financial issues to resolve might start with less complicated ones, such as setting a date for a garage sale or dividing up the kitchen utensils. Making several such mutual concessions at the start, no matter how simple or risk-free, gets the log rolling: fostering optimism and a spirit of compromise that will carry over to the tougher discussions yet to come.

Getting a Divorce? Don’t Let the Tail Wag the Dog

Almost any family law attorney can describe a case wherein a couple spent hundreds of thousands of dollars to settle issues of asset division, alimony, child support, and custody. In other less costly instances, the money spent still far outstripped the value of the issues at stake. In one case, a father wanted to set his child support obligation $200 per month lower than the state guideline. When the mother balked and mediation did not resolve the matter, the father took it to litigation. The Judge subsequently ruled in the father’s favor, saving the father approximately $16,000 between then and when their child turned 18. Their legal fees, however, totaled $65,000. Not a financially smart way for either parent to resolve this impasse.

Not every divorce costs $65,000 to settle one matter, but it is not uncommon for everyday couples with modest financial estates to pony up $15,000 to $20,000 in lawyers’ fees to settle what could have been an uncontested divorce. Can couples reach agreements and get divorced without draining their accounts? In a word, yes. But it takes common sense, a commitment to fair-minded agreements, and a willingness to set aside emotional payback as the goal.

First, divorcing couples must remember not to let the tail wag the dog. They, not the lawyers, decide how the divorce will proceed: contentiously (with the associated legal expense) or civilly (which leaves little for a lawyer to do but fill in the documents). In fact, couples who are the most committed to saving money and time, settle their divorce without any lawyers at all by using an online divorce service that provides the information and guidance they need to reach fair agreements and complete the necessary documents—at a reasonable cost.

Whether a couple uses lawyers or does their divorce on their own, here are five frequent mistakes that can drive up the cost.

  1. Being dishonest about financial matters, including withholding information. When one spouse learns that the other is not providing complete, accurate financial information, mistrust poisons every subsequent discussion. Lawyers have solutions when this occurs: depositions, discovery, and testimony. These tactics are effective, but expensive, time consuming, and intrusive. Don’t kid yourself: Hiding or misrepresenting assets is likely to cost you more in the long run than being transparent from the outset.
  2. Using lawyers to settle inconsequential issues. It’s important that couples avoid heedless concessions just to get divorced. But do you really want lawyers, at their hourly rate, to go back and forth about who will take the children to and from soccer practice or how the kitchen utensils will be divided? They didn’t go to law school to settle such trivial issues; and it’s not what you had in mind when you originally hired them.
  3. Being stubborn and inflexible. When emotions run hot, it’s easy to dig in one’s heels to make a point: “I won’t be pushed around.” But make sure your heels aren’t digging too deep a hole. Spending thousands of dollars in legal fees to make your spouse responsible for the cost of summer camp is not the best use of community assets.
  4. Seeking vengeance, rather than a legal settlement. Divorce is first and foremost, a legal process with a legal outcome. When couples decide to use that process for non-legal purposes, such as to get revenge or publicly humiliate the other, the divorce will get very messy and very expensive, very fast. Interestingly, research in this area has found that getting revenge feels very good for a very short period of time; then it doesn’t feel good at all.
  5.  Refusing to communicate in a civil manner. A divorce requires couples and their representatives to communicate: information exchanged, requests conveyed, proposals submitted, trade-offs suggested, offers accepted. This process becomes terribly difficult and inefficient when straightforward communication is replaced by argument and conflict. The goal of divorce is to reach a legal agreement, not to replay everything that went wrong in the marriage.

Fairness is not an “F-word”

Having Fair Standards: A Divorce Without Lawyers

When you divorce without lawyers, some divorce professionals (like mediators) tell divorcing spouses not to use the term ‘fair’ when discussing what they want in a divorce agreement: “Fair is an F-word. We don’t use it here. You’re not going to get fairness. You’re going to get a divorce.”

But many don’t agree with this philosophy, perceiving that it confuses the necessity of learning to accept life’s inevitable setbacks (“life isn’t fair”) with the equally important task of helping one another find meaning and value in life by offering fairness wherever it can be found. And it can be found—even in the midst of a difficult divorce.

Naturally, how you define fairness may be quite different from how I define it. What seems entirely fair to you may seem outrageously unjust to me. And therein lies the problem when negotiating: How do we reach a mutually acceptable definition of fairness that allows us to settle our differences? And fairly so?

Achieving that standard isn’t always easy but it is absolutely worth striving for—and not a goal that should be dismissed as naive and pointless. Like so many aspects to negotiating or mediating a divorce or a parenting plan, the answers lies in attending, separately, to the way you negotiate as well as to what has to be settled.

A fair way is a fair process: identifying each family member’s interests, respecting alternate points-of-view, providing a safe environment for creative brainstorming, avoiding personal attack and deceit, and not relying upon coercion and bullying to persuade agreement. In other words, a fair process means playing fair. It is about civility, courtesy and respect — the very values that parents want to teach their children.

And to determine what is fair, you can often turn to external standards and guidelines. Whenever possible, obtain the facts:

  • Unsure about the value of a family car? Check the Blue Book for an objective, neutral figure.
  • Not sure how to estimate the current equity in your home? Consider taking the average of two neutral appraisals as an agreed upon “fair value.” Or check the tax records for the appraised value.
  • Puzzled and worried about the best parenting time schedule for a preschooler? Consider what the psychological research and outside experts say about what young children of divorce really need.

Fairness: Playing fair; seeking fair standards.

Know Your Divorce Paradigm

Divorcing couples who want to settle their own divorce and to use an online divorce service to avoid excessive legal fees need “to know their paradigm.” What do we mean by that?

You’ve heard the terms “work mode” and “play mode.” Perhaps you’ve commented: “I’ve got my work hat on now” or “I put on my social face when we go to parties.” In other words, we match our behavior to the context to make the most of the experience. The same analogy holds true for different ways to solve a problem, such as agreeing upon the terms of a divorce. If we intend to rely upon an arbitrator, such as a judge, to make a decision for us, I best pull out my litigators’ tools. I will develop persuasive arguments for my position and against yours and approach the matter as a win-lose deal. I have no stake in the extent to which your interests are satisfied; I am only interested in meeting my own. But if we intend to negotiate a divorce without lawyers, I will employ my problem-solving tools. I will propose compromises and mutual concessions and suggest trade-offs that help both of us. Most importantly, I have a stake in your interests; if yours aren’t met, we don’t have a deal. And if we don’t have a deal, my interests won’t be met either.

Litigating and negotiating are different paradigms utilizing different tools to accomplish the same goal: to resolve an impasse. A litigator’s tools (e.g., staking out a position, arguing, threatening, withholding information) are designed to win a contest. It’s all about power: “I have a stronger position.” A negotiator’s tools (e.g., proposing compromises, mutual concessions, trade-offs, re-framing) are designed to solve a problem. It’s all about mutual benefit: “I have an idea that works for both of us.”

What happens to many couples who are trying to agree upon an uncontested divorce without lawyers, however, is that they forget the context in which they are trying to solve a problem. They use a litigator’s tools as though to win a contest rather than a negotiator’s tools to solve a problem. But without an arbitrator present, who will listen to opposing perspectives and decide? Not you or me, we’re too busy trying to score points. Does this help you understand why so many arguments end badly?

If we intend to solve a problem directly, we have to make a conscious decision to be negotiators and leave the tools of litigation behind: “I’m not here to argue or overpower you, I’m here to find solutions that work for both of us.” This means: I will listen rather than grandstand, offer mutual concessions rather than ultimatums, and suggest novel solutions instead of one-sided proposals.