One of the weaknesses of litigated divorce is that it encourages rigid thinking that stands in the way of compromise.
Choosing your battles wisely is an important strategy in all areas of life, including if you are in the process of divorce. Unfortunately, traditional divorce attorneys often neglect to give their clients this advice, encouraging them to fight for everything they say they want, regardless of how impractical, impossible or destructive it may be. And when the other spouse inevitably takes opposite positions on those same issues, there’s nowhere to go but to the courthouse where both parties will be subjected to the slow-moving and very public litigation process.
Practitioners of non-adversarial divorce, such as mediators and collaborative law attorneys, call this mindset “positional thinking.” Positional thinking is black and white. It’s drawing a line in the sand. And it happens when someone feels the need to defend his or her reasons, behavior or decisions based on the past rather than what is actually important in the present or future. In a divorce, examples look something like this:
- Wanting to continue living in a residence that isn’t affordable.
- Refusing to share retirement assets.
- Insisting on a parenting schedule that leaves one parent disconnected from the children.
While positional thinking communicates WHAT someone wants, interest-based thinking asks WHY they want it.
Divorce professionals see positional thinking all the time. Especially when we first meet with our clients. It’s completely normal behavior. But if we want to keep our clients out of court where battle lines will be drawn, we need to help them dig deeper and move beyond this thinking. The key is to ask “WHY” questions such as:
- Why is important to you to continue living in your home until your children graduate from college?
- Why are you willing to give your spouse the majority of the other assets just so that you can keep your 401(k).
- Why do you feel it’s important that the children spend every school night at your home?
When we know what is driving the clients to take certain positions, we can create a wider range of outcomes that might be acceptable to both of them. For example:
One spouse may want to sell the marital home while the other wishes to keep it. Instead of arguing those positions to a judge, both spouses should be asked why it is important. What is each person trying to achieve with that outcome? It could be that the person who wants to keep the house feels that way because the carrying costs are reasonable, it’s close to the children’s school, or there are close ties to the community.
The person who wants to sell can be motivated by equally valid concerns. Perhaps he or she needs access to the equity, or needs to get his or her name off of a mortgage in order to buy a new home—or perhaps it’s purely an emotional issue. Not until we can understand what is really important to both of them can we try to find solutions that meet both their needs.
Making sense of positions, interests, fears and desires is a monumental task. The first thing to do is to contact a lawyer who is trained as a mediator or collaborative lawyer, not just any lawyer who claims to “settle” most cases. You want someone who thinks differently from the pack, who is on the cutting edge of alternative dispute resolution, and who has a rich professional network of other divorce professionals who can take on more specialized roles as they become necessary—like financial experts, coaches or therapists.
To find out more about my team and me contact us here.
570 Lexington Avenue, Suite 1600
New York, NY 10022