A Better Way for Families to Transition


Separating Better Collaborative Lawyers Specialize in Collaborative Divorce Law


iStock_000006971646XSmall Mom sonThe Collaborative Process is a problem-solving approach designed to manage negotiations when emotions are strong and when it’s important to preserve an ongoing relationship, such as when children are involved. Spouses choosing to separate often have strong emotions related to the end of their marriage. Most people are not operating at their best when they are angry, upset, and afraid of the unknown. Typical methods of negotiation tend to escalate those negative emotions and damage ongoing relationships. Most of us are familiar with bargaining in which each party takes a position and argues that position until things either break down or compromises are made, without respect to each other’s needs or interests. This tends to produce failed settlements and poor agreements.

Further, when one or both parties are not satisfied with the terms of their original agreement, there tends to be a lack of compliance and future requests to modify the agreement. People become angry and resentful when they feel that they have been forced to give-in and also when their own concerns have not been adequately addressed. This resentment often interferes with all future communication with their ex-partner, making co-parenting less than effective.


Collaborative negotiations can satisfy both parties’ interests and preserve ongoing relationships. The Collaborative negotiation model relies on well-founded dispute resolution research that began in the late 1970’s with co-founders, Roger Fisher and William Ury, of The Harvard Negotiation Project. They developed an alternative to positional bargaining, called “principled negotiation” or negotiation on the merits. This method of negotiation is explicitly designed to produce wise outcomes efficiently and amicably. Fisher and Ury understood that people have strong emotions and that each person often perceives things very differently, thereby making it difficult to communicate clearly. Collaborative negotiations manage these difficulties by helping parties to communicate more effectively, in part, by identifying the objective merits of a concern that are getting entangled in their emotions. This problem solving approach has also been referred to as “being hard on the problem and soft on the person.” Collaborative attorneys are specially trained in interest-based negotiations and conflict management, making them especially effective when assisting their clients to discover possible solutions that advance shared interests and creatively reconcile differing interests.


Most people find it important to participate in the decisions that impact their lives. The array of legal options available in divorce can feel overwhelming. One perspective is to choose a legal process that gives you the freedom to make decisions without destroying your well-being and minimizing the long-term destructive consequences that an adversarial approach can produce.


Since 2003, The Collaborative Process has been a part of North Carolina’s legal options by statute. This process is the only out-of-court process that has formal rules that legally binds both lawyers and the parties. These rules include good faith negotiations and full disclosure of information, such as finances and other matters impacting decisions. All parties commit upfront to work transparently and to participate in in-person or in “team” meetings to help each party find optimal solutions and if the parties are parents, to also preserve their ability to operate effectively as co-parents in the future.


Decisions about separation and divorce have legal implications. Therefore the parties are educated about legal issues impacting potential solutions. It is important to note, however, that legal standards are often considered the lowest common denominator for parties reaching a mutually acceptable solution. In a Collaborative Process, the parties are able to create solutions that may differ from common practice, but such individualized solutions end up being far more useful to them because they are specific to theirs and their family’s needs.


The Collaborative Process provides a structured negotiation enabling parties to make comprehensive, durable agreements. Parties are able to craft mutually beneficial solutions that would not likely be considered in traditional negotiations. For example, parents are able to coordinate matters outside the court’s purview, for example, how they will financially manage the things they both find important, such as providing financing for children’s enrichment opportunities, college, and other unique needs. Further, often under the guidance of a neutral financial specialist, creative financial scenarios are explored that address parties’ individual circumstances, to ensure short and long-term financial needs are addressed, prior to making final commitments. Also, if there are minor children of the marriage, a neutral Child Specialist can assist parents to ensure they are acting in concert with one another to promote their children’s continued well-being. Additionally, Divorce Coaches can be available to assist the parties, as needed, so that they are effectively able to articulate their individual interests.  They may also assist the parties in creating a parenting plan for minor children. Collaboratively developed parenting plans tend to be more comprehensive than those developed within a traditional legal process and can minimize future difficulties related to co-parenting disputes.


There is a great deal of confusion about the differences between Collaborative Process and Mediation. Collaborative attorneys are trained in mediation and utilize their skills in conflict resolution to represent their clients’ interests in reaching optimal solutions. Collaborative professionals, attorneys, mental health professionals and financial specialists, work as part of a team to assist the parties in reaching a mutually acceptable solution and a legally binding contract.  A mediator, who may also be an attorney, is an impartial third party that facilitates communication and helps the parties to negotiate to arrive at a mutually acceptable resolution. Mediators do not give legal advice and do not draft contracts. Mediators prepare a summary of the parties’ agreement, or a Memorandum of Understanding. The parties may or may not have attorneys present during mediations. The attorneys prepare the necessary legal contracts or resulting consent orders, depending on the case. Also see below for Mediated Settlement Conferences.  Mediated Settlement Conferences and Traditional Negotiation: Most parties are able to resolve the issues of separation and divorce without involving the court system, with the exception of certain matters that must be filed in court (Divorce and other matters requiring a court order, such as transfers of retirement assets between spouses).  In a traditional negotiation, the attorneys are negotiating on behalf of their clients. The parties may employ mediation in the form of a mediated settlement conference. In most cases, such settlements are adversarial and use positional or “win-lose” negotiations. The parties are not generally in the same room during negotiations; as most mediated settlement conferences are performed with the mediator going between rooms, with an attorney and their respective client in separate rooms. The goal in positional negotiation is for each attorney to attempt to get the best deal for their client. Legal statutes and precedent are the default positions in this type of positional negotiation. Therefore, this form of bargaining tends to limit options according to minimal standards gleaned from legal statues and case precedent and thus, often neither party is fully satisfied with the end result. Such minimal solutions lack flexibility and tend to result in future frustration and the need for frequent modifications and legal enforcement of Agreements.


If you are considering a separation and would like to learn more about Collaborative Settlement options, please contact any member of Separating Better.  Separating Better is an Interdisciplinary Practice Group comprised of independent, highly trained professionals. Our participating members are all committed to helping spouses reach comprehensive, creative and durable solutions to the legal, financial and emotional issues involved in ending a marriage.