Collaborative divorce originated in Minnesota in the early 1990's. The process involves divorce litigants agreeing to forego court proceedings and work together to gather information, consult with experts, and bring matters to a conclusion by agreement. The evolution of early neutral evaluation has reduced the number of collaborative divorces.

Written by Roger Fisher and William L. Ury in 1981, the bestselling book Getting to Yes: Negotiating Agreement Without Giving In has become a go-to resource for working through challenging negotiations. As it turns out, the “getting to yes” methodology can also be very helpful in mediating difficult divorce agreements. Below are some key insights that we can apply to divorce negotiations, based on the book’s five-point method.

1. Separate the people from the problem

When you view your ex as “the problem” or vice versa, negotiating a settlement becomes much more difficult. In truth, there are specific issues between you that are causing the split—not any one person. Focusing on the issues rather than placing blame takes you much further toward a solution that works for both.

2. Focus on interests, not positions

When you simply take opposing positions in a disagreement, one person “wins” while the other “loses.” Instead, try focusing on the interests of each person: what do you want in a settlement? What does your ex want? Is there any position you could take that could serve both interests?

3. Generate options for mutual gain

Once you’ve identified each person’s interests in the divorce, start imagining a number of alternatives in which both people stand to gain, turning a win-lose into a win-win scenario. This is key to turning combat into negotiation because both of your interests are now being served.

4. Insist on objective criteria

When contemplating the alternative solutions, you must base the consideration on an objective set of criteria. This is the more difficult part of the negotiation, because both parties will likely give up something they want. Here is where a neutral mediator can be most useful because he/she has no emotional investment in the solution.

5. Know your “BATNA”

Should negotiations fail or you find yourself losing too much ground, your Best Alternative to a Negotiated Agreement (BATNA) is your baseline or safety net—the “worst case scenario” or default course of action you must take if you can’t come to agreement. Knowing your BATNA gives you a fair point of leverage in negotiations as the low point that both parties wish to avoid, helping you both stay motivated to come up with a better solution in the divorce agreement.

Are marriage and divorce different for the very rich and very poor? One oft-cited statistic is that 50% of marriages end in divorce, but that doesn’t account for income disparity, nor does it account for the fact that many divorces are from second and third marriages. Still, a look at marriage rates in recent years reveals  that fewer people are getting married overall.

There are many reasons why fewer people seek marriage today, which also means fewer people are getting divorced. Interestingly, when the recession hit in 1998, that economic change sparked an upsurge in divorce. That fact should come as no surprise, since arguing over money is one of the main causes of divorce, among both the rich and the poor.

While arguments over money obviously can lead to marital strife and the break down of communication, the story is not so simple. People don’t just get divorced because they lack resources. Certainly, empty pockets add to the stress of raising a family, and that can lead to poor families splitting as well as to behaviors (such as criminal acts or addiction) that further fray relationships. However, there’s a wrinkle: many poor people simply can’t afford to divorce… or at least they believe they cannot afford to separate.

Another cultural phenomenon may be relevant to our question. Over the last 50 years, women have been joining the workforce in droves. As a result, women have seen their incomes go up. Interestingly, in homes where the woman earns more than her husband, the couple seems to be at higher risk of divorce. Could new gender economics somehow contribute to some divorces?

Celebrity divorces get a lot of media attention, but are celebrities even a good proxy for the “wealthy”? Perhaps the complexities of fame dictate how and why celebrity couples split more so than fortune.

Marriage and divorce are complicated matters. It’s difficult to say which socioeconomic class divorces more often, but we can say married couples are more financially stable and that divorce (in general) leads to wealth reduction. It appears from the data we have that the most financially secure are people who get married and stay married.

Our Minnesota divorce lawyers can help you understand your options and develop a clear strategic approach to meeting your needs and protecting your children. Please call us at 763-323-6555 to discuss your situation.

Lawyer Stuart Webb created collaborative divorce right here in Minneapolis in 1990 due to his frustration at the red tape surrounding the end of marriages. He refused to keep going to court on the behalf of divorcing clients, instead helping them work out their differences outside of court. He decided to turn his more difficult and (to him) unrewarding cases over to another attorney who preferred a more traditional and litigious approach.

Other attorneys in the city took notice of Webb’s revolutionary process, and some of them liked the approach so much that they decided to copy his methods. Per Webb’s process, all four individuals involved – both spouses and the two opposing lawyers – signed a contract, agreeing to pursue an amicable resolution and requiring both attorneys to withdraw if the case landed in court. In other words, the process incentivized the attorneys to make the negotiations really work. Thanks to the early success of this collaborative method, news soon spread from Minnesota to other states, as other family law lawyers looked for better ways to negotiate divorces.

When the court system in Medicine Hat, Alberta, took advantage of the collaborative idea, the community’s rate of divorce dropped by a stunning 85 percent, because so many couples decided not to split up thanks to the collective efforts of the collaborative team. The practice gained even more publicity after high profile newspapers and magazines, including Maclean’s, The Toronto Star, The Lawyer’s Weekly, started writing about it.

Advantages of Collaborative Law

In addition to being much less contentious, collaborative generally costs less than traditional divorce. The practice is also continuing to gain acceptance and momentum across the nation and in Canada. Experts who study marriage and divorce data believe this trend will only continue.

Clients should not confuse collaborative divorce with divorce mediation.

Collaborative divorce does not involve a mediator, who acts as a neutral party. None of the parties in collaborative divorce is neutral, although they all work together to negotiate a settlement. Each attorney looks out for the client’s best interests and gives his or her client appropriate legal counsel.

Who Does Collaborative Divorce Help?

What couples benefit most from collaborative divorce? While each situation differs, this method is particularly useful in the following cases:

•    You and your spouse have traditionally struggled to communicate;
•    You have serious concerns about property division;
•    One person in the marriage has controlled the finances;
•    You have children or other dependents;
•    You have concerns about visitation and custody.