Communication is Key in Divorce

I am going to take a slight detour from the series of posts on Collaborative Law to talk about the importance of communication skills for parties in divorce cases. Collaborative Law depends on the parties’ ability to learn and use effective communication skills to resolve their disputes. However, most clients severely underestimate the importance of their communication skills during and after the divorce process.

Effective communication, in my mind, requires three essential components: The ability to listen to the other party for content, instead of tone; the ability to formulate responses based on logic instead of emotion; and the ability to focus on interests instead of bargaining positions.

The vast majority of domestic clients find it very difficult to hear the content of the other party’s statements because they are offended by the tone. Correspondingly, many attorneys and parties fail to understand that the content of their message can easily be lost when an overly aggressive or combative tone is used. In order to effectively communicate and resolve domestic disputes, all parties must be able to sift through the tone to find the substance of the communication. They must also be mindful of the tone of their own communications. If the parties cannot get past the tone of the message or control the tone of their own message, then communication between the parties becomes at best unproductive, and at worst harmful.

One of the worst effects of poor tone in communications between parties in a domestic legal matter is that poor tone elicits emotional responses. Many lawyers and clients believe that you have to “fight fire with fire.” That is a fine strategy if your intent is to lengthen the process and spend more money in legal fees. However, if the actual goal is to resolve the conflict and move on with life, then the attorneys and clients have to learn to respond with logical and practical proposals and solutions, instead of with fire. The fact is that no one can win a battle of emotion. There is no prize for the “toughest” or angriest person. But, there are large rewards for the most logical and effective communicators.

The best way to structure communication to avoid the above pitfalls is to focus communication on interests instead of positions. The difference between interests and positions is subtle but important. Some of you may have read Getting to Yes in the course of your education or careers. Getting to Yes is essentially a manual for learning how to communicate based on interests instead of positions. The difference between positions and interests is the difference between saying “I want sole custody of the kids” and “I want to make sure that my relationship with the kids does not suffer because of the divorce.” “I want sole custody of the kids” is a position. “I want to make sure that my relationship with the kids does not suffer” is an interest. People adopt positions based on their interests. The problem is that the position may not be, and often is not, the best way to meet their interests. Taking positions in negotiations reduces the possible number of ways to resolve a problem; expressing interests keeps all solutions in play. The more clients and attorneys focus on positions, the more options are removed from the table. Eventually, as is common, the parties unwittingly destroy the middle ground, and litigation ensues.

In my next post, I will discuss the benefits of effective communication between the parties in a domestic legal dispute.

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