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.