The benefits of Collaborative Divorce can be difficult for clients to appreciate in advance. Seeing and appreciating how a joint problem-solving negotiation differs from adversarial and transactional negotiation in substance and result is far easier in retrospect.
In simplistic terms, a joint problem-solving negotiation (aka an “interest-based” negotiation) is a negotiation where everyone clarifies the issues that need to be resolved, the resources available to solve them, and the goals for the parties before trying to create solutions. It structures the issues as joint issues to be resolved together.
An adversarial or transactional negotiation (aka “traditional” legal negotiation) is one in which each party is only trying to accomplish their goals and obtain the largest portion of the resources possible.
As I was helping my daughter study for an AP Psychology test recently, I came across two terms that succinctly highlight the differences between the two negotiation approaches. (As an aside, if you want to find out how much you’ve forgotten since college, help your kid study for a high school test; I was a psychology major and it was humbling).
The first term is The Door in the Face Technique. This is a compliance and negotiation strategy in which a party intentionally asks for a strategically and unreasonably large concession so that their next request seems reasonable by comparison. This is a favorite of most legal negotiators and is, in my experience, the backbone of most divorce negotiations and mediation in North Carolina. This approach is designed to trick one or both parties into believing that they’ve obtained valuable concessions from the other party. However, the concessions are false because the starting request was false.
The second term, which lies in contrast to the Door in the Face Technique, is the idea of Superordinate Goals. These goals are the most valuable and broad goals that can only be achieved when parties in conflict see their common goals and work together to meet them. Superordinate goals are a primary focus of interest-based negotiation and Collaborative Divorce.
As I quizzed my daughter on these terms, I had a moment of clarity. I realized that my choice to leave an adversarial family law practice and focus on Collaborative Divorce some 12 years ago was largely based on my desire to help families focus on superordinate goals as a part of their divorce, and avoid the bad faith, sharp dealing, hard feelings, and destruction that comes with the Door in the Face Techniques.
To be sure, Door in the Face Techniques may have their place in some negotiations. Car dealerships, personal injury settlements, and many business negotiations use this technique daily. And that may be fine for situations where the ongoing goodwill and daily working relationship of the parties do not matter.
But, in situations like divorce, where the ongoing goodwill and relationship of the parties is crucial to both their health and the health of their children (not to mention the health of their financial nest egg), focusing on superordinate goals instead of slamming doors is the more productive negotiation for most people.
In my experience in my former life as a litigation attorney, I found that almost every case I had begun and ended with Door in the Face (usually in a letter or draft agreement from the other party’s attorney). Most divorce attorneys either did not recognize that the parties could have mutual goals, or they chose to believe that such goals were a necessary casualty of the fight. There was certainly no discussion of superordinate goals between the attorneys in a negotiation.
Certainly, some clients do not want to focus on superordinate goals, and their desire to utilize Door in the Face techniques and leveraged negotiations makes them poor matches for an interest-based negotiation.
But, in my experience, those families are the exception to the rule. Most families can readily identify their superordinate goals and are willing to pursue them collaboratively IF the other party agrees to do the same.
If you are facing a possible separation or divorce, give some thought to your superordinate goals and whether you would like to pursue those or prefer to start slamming the doors of negotiation. If you prefer to blend the pursuit of superordinate goals into your negotiation, then contact a Collaborative Divorce attorney in your area to discuss how to do that.