When the collaborative facilitator meets the team’s clients for the first time, usually individually, she asks them to define their goals, “What do you hope to accomplish in your divorce?” She will then explain the difference between a position and a goal or an interest.
A “position” is a demand. Increased stress often masks the true motives behind people’s positions. An “interest” is the reason at the heart of the demand; it is more general than a position, and therefore open to interpretation. Position-based negotiation is an adversarial approach that considers only “what I want.” It therefore limits each person to considering only his or her wants and needs, and hampers negotiations in the same way that blinders hinder a horse’s eyesight.
Interest-based negotiation encourages participants to understand where the other person is “coming from.” It encourages the participants to consider other alternatives to satisfy their interests than the ones that are immediately obvious.
What They Say Versus What They Want
Clients commonly says things like, “I want the house,” “I want alimony,” or “I want custody.” But these are positions, while the actual goals beneath the words might be, “I want the kids near their friends”; “I want them each in their own bedrooms”; or “I want them in the best schools.”
Similarly, the true interest at stake when someone says, “I want permanent alimony” is likely to be “I want financial stability.”
“I want custody” might mask a fear that she can’t afford to pay child support, or that her relationship with their kids will be damaged if she is unable to spend the same amount of time with them as before the divorce.
Your facilitator should provide the other professionals on your team with a report on both clients’ goals and interests, as well as on their personalities, their sensitivities, their behaviors, and other crucial considerations for managing future communication and avoiding conflict between the spouses. These reports will reveal various client issues before the other professionals even begin their work and will also suggest how best to handle them so that all are better prepared to render the services each unique couple needs.
By helping clients identify their goals, the team can generate multiple settlement options to accomplish each one. Articulating goals expands the bargaining parameters and enables spouses to understand that there is more than one way to resolve apparent conflicts.
As of this writing, there is no mandatory format for the facilitator’s report and, indeed, some facilitators prefer to give such reports orally at the first professionals’ meeting, although that practice is disfavored. One such report follows; this facilitator was particularly thorough.
The clients here had already separated and completed much of the grieving process. Thus, the issues were not about whether to divorce or about money, but about co-parenting and communication. For this reason, this facilitator launched his work with the parents on a timesharing plan early in this process. His report includes an account of those efforts.
Facilitator’s Report
Individual Meeting: Jack Jones
Date: 11/03/2020
Jill has already filed her divorce petition, but they both (and the judge) have agreed to abate the courtroom process in favor of this collaboration.
Jack was 20 years old when he married Jill. Over the course of their eleven-year relationship, he believes they both did “things” that negatively impacted their trust and respect for each other. Jack and Jill were “totally different people.” Initially, these differences were what attracted him to Jill. They “complemented” each other. Unfortunately, these differences ultimately pulled them apart and now make it impossible to reconcile.
Jack has “trouble trusting that others will be there for him” when he needs help. Consequently, he has limited relationships; his parents and brother are as his primary support system.
There is another child in this family, Jill’s daughter from a previous relationship. Jack has been the father figure for Jane (14) since she was three. Prior to this process, Jack describes his relationship with Jane as positive. Their current relationship, however, is strained; they have no contact. He considers Jane his daughter and will be there whenever she needs him.
Jack describes a good relationship with his son, Jon. They share time together weekly and often Facetime. Jack confided that Jon asks why his sister doesn’t come with him to his father’s house. Jon also verbalizes that he caused this divorce.
- Trust Issues: [Level of trust (1) = no problems and (10) = virtually impossible]
- Jack’s overall level of trust for Jill was a “4” and a “5” relative to the children.
- Parenting Issues/Concerns:
- Parallel parenting style
- Very limited, poor communication between parents
- No routine or consistency in their co-parenting
- Believes their goals for their son are the same
- Equitable Distribution of Assets:
- No joint assets or debts
- Alimony:
- He does not think Jill will request alimony.
- Child Support:
- Jack wants to share financial obligations for their son 50/50.
- Communication Style:
- Jack’s communication with Jill is “horrible.” They have very little interaction and convey information through their son or by text message. They had a better relationship prior to this summer. Jack recalled eating dinner together and carpooling to their son’s games. He doesn’t know what happened but that stopped.
- Jack does not exhibit stress or anger. He works hard to control his emotions because he has a “bad temper” and does not feel others could handle him when he’s upset.
- Jack’s lack of emotional expressiveness may bother others; it upset Jill when they were together. She wanted him to show more feeling in their relationship.
- When he feels emotional, he walks away from an argument.
- Conflict Resolution:
- Jack described the following pattern. One of them brings something up, the other rebuts, and that leads to an argument. As a result, Jack found himself frequently trying to avoid arguments.
- Expectations of the Collaborative Process:
- Jack wants the divorce over. He’s willing to compromise to reach agreement. He feels they could sit in the same room without incident and is confident they can get through the process successfully.
- Domestic Violence: None Reported
- Safety Concerns: None Reported
- Alcohol / Substance Abuse: None Reported
Individual Meeting: Jill Jones
Date: 11/03/2020
*Throughout the meeting, Jill was visibly emotional.
Jill was pregnant with their son at age 19 and married Jack when she was 20. Jill can be short-tempered and blunt. She knows this can be a problem and has been working on it. Jill has spoken with her pastor about their problems, who suggested couples’ counseling, but Jack would not attend. She feels there is no chance for reconciliation.
Both clients realize that Jane is part of their family system and has been negatively impacted by their separation. She was close to Jack’s family. Since the separation, Jack’s family ended all contact. Jill encourages her daughter to tell Jack how she feels.
Jill does not want to discuss Jane during this process. This facilitator encouraged Jill to find a counselor for her daughter and offered to provide referrals, if necessary.
Jill identified her sister as a source of support; she helps with the children.
- Trust Issues: [Level of trust (1) = no problems and (10) = virtually impossible]
- Jill trusts Jack with their son’s safety, but doesn’t trust him to tell her the truth.
- Parenting Issues/Concerns:
- Parallel parenting style
- Jill concurred with Jack that their co-parenting abilities changed significantly over the past few months. However, neither was able to verbalize a reason for this.
- Prior to separation, they were on same page, but since then, Jack rewards Jon and does not support her with decisions she makes in her home or with Jon’s behavior outside the home.
- In contrast to Jack’s observations, Jill described Jon as always being a happy kid prior to their separation. Since then, he has been crying more frequently, is less respectful at home and school, and blames mom’s friend for the divorce. He has even been disrespectful to his coaches, which is out of character. She believes Jon is attempting to split the parents since they don’t communicate.
- Equitable Distribution of Assets:
- No joint assets or debts
- Alimony:
- Jill did not ask for alimony in her petition for divorce.
- Child Support / Time Sharing:
- Jill believes child support will be the most difficult issue to resolve. She reports they both have agreed with 50/50 time sharing.
- Communication Style:
- Jill initially presented as guarded. Once we established rapport, she openly shared the difficulties she has had during and after their marriage, specifically co-parenting with Jack. Jill holds in a great deal of frustration with and anger at Jack. She will try to contain her emotions, but risks becoming upset quickly as we begin to address unresolved issues in our team meetings.
- Jill described her relationship and communication with Jack as almost non-existent. She tries not to use their son as a messenger. However, Jon goes back and tells his father everything that happens in her home. She doesn’t know if Jack encourages this behavior, but it has caused stress in her home.
- Conflict Resolution:
- Not able to resolve their conflicts. Therefore, they do not talk.
- Expectations of the Collaborative Process:
- Jill is confident that they will successfully get through the collaborative process.
- Jill’s greatest hope is for this process to improve their communication and co-parenting skills.
- Jill wants Jack to “change” for their son.
- She added that her greatest fear was that Jack would (legally) take her son away from her.
- Domestic Violence: None Reported
- Safety Concerns: None Reported
- Alcohol / Substance Abuse: None Reported
Joint Meeting: Jack and Jill
Date: 11/10/2020
*Throughout the meeting, Jill was visibly emotional.
Jill was pregnant with their son at age 19 and married Jack when she was 20. Jill can be short-tempered and blunt. She knows this can be a problem and has been working on it. Jill has spoken with her pastor about their problems, who suggested couples’ counseling, but Jack would not attend. She feels there is no chance for reconciliation.
Both clients realize that Jane is part of their family system and has been negatively impacted by their separation. She was close to Jack’s family. Since the separation, Jack’s family ended all contact. Jill encourages her daughter to tell Jack how she feels.
Jill does not want to discuss Jane during this process. This facilitator encouraged Jill to find a counselor for her daughter and offered to provide referrals, if necessary.
Jill identified her sister as a source of support; she helps with the children.
- Trust Issues: [Level of trust (1) = no problems and (10) = virtually impossible]
- Jill trusts Jack with their son’s safety, but doesn’t trust him to tell her the truth.
- Parenting Issues/Concerns:
- Parallel parenting style
- Jill concurred with Jack that their co-parenting abilities changed significantly over the past few months. However, neither was able to verbalize a reason for this.
- Prior to separation, they were on same page, but since then, Jack rewards Jon and does not support her with decisions she makes in her home or with Jon’s behavior outside the home.
- In contrast to Jack’s observations, Jill described Jon as always being a happy kid prior to their separation. Since then, he has been crying more frequently, is less respectful at home and school, and blames mom’s friend for the divorce. He has even been disrespectful to his coaches, which is out of character. She believes Jon is attempting to split the parents since they don’t communicate.
- Equitable Distribution of Assets:
- No joint assets or debts
- Alimony:
- Jill did not ask for alimony in her petition for divorce.
- Child Support / Time Sharing:
- Jill believes child support will be the most difficult issue to resolve. She reports they both have agreed with 50/50 time sharing.
- Communication Style:
- Jill initially presented as guarded. Once we established rapport, she openly shared the difficulties she has had during and after their marriage, specifically co-parenting with Jack. Jill holds in a great deal of frustration with and anger at Jack. She will try to contain her emotions, but risks becoming upset quickly as we begin to address unresolved issues in our team meetings.
- Jill described her relationship and communication with Jack as almost non-existent. She tries not to use their son as a messenger. However, Jon goes back and tells his father everything that happens in her home. She doesn’t know if Jack encourages this behavior, but it has caused stress in her home.
- Conflict Resolution:
- Not able to resolve their conflicts. Therefore, they do not talk.
- Expectations of the Collaborative Process:
- Jill is confident that they will successfully get through the collaborative process.
- Jill’s greatest hope is for this process to improve their communication and co-parenting skills.
- Jill wants Jack to “change” for their son.
- She added that her greatest fear was that Jack would (legally) take her son away from her.
- Domestic Violence: None Reported
- Safety Concerns: None Reported
- Alcohol / Substance Abuse: None Reported
Joint Meeting: Jack and Jill
Date: 11/10/2020
The two did well in our first joint meeting. They were respectful and initially took turns sharing their thoughts and information. However, they quickly began to debate when they came upon their first impasse. I reminded both several times to remain focused on the present and not to bring up the past or to blame. They complied and, although tense and upset with each other, were able to work through the parenting plan, agreeing on most issues.
Jack frequently denied that the parenting plan needed to be specific. He felt that, once they get through “all of this,” they will figure it out together. Jill wanted a well-defined parenting plan. She cautiously moved through terms in the plan and appeared comfortable raising her concerns. When we discussed time sharing, Jack proposed a change to the current schedule. Jill was adamant that the schedule not change. Jack offered several potential compromises before agreeing to address it, instead, during the team meeting.
*I informed both of the nature of the collaborative team meeting and they both agreed that they would be comfortable and would utilize this facilitator and/or their attorneys if needed during the full team meetings.
Outstanding Issues for the Team:
- Both were able to reach agreement on most of the issues covered in the parenting plan, including the holiday schedule. However, they did not agree on the timesharing schedule. Jack wants to change his current schedule from Friday, Saturday, Sunday, and every other Monday to Sunday, Monday, Tuesday, and every other Wednesday. Jack works 3rd shift and feels this will afford him more quality time with Jon, and allow Jill to have the weekends, as well. Jill likes the current schedule and states Jon is also happy with it. She is concerned about Jack’s ability to keep up schoolwork if he has Jon during the week. She feels that she should have Jon during the week to ensure he stays on track academically. This is an issue on which she is “not budging.”
- Child support – Jack paid $150/month when he could. Both agreed that he has not paid support since June 2019.
- Tax issue – Jill has claimed Jon as a dependent to date.
- Alimony is a point of contention. In individual sessions, neither reported wanting it. During our joint session, it appeared Jill may have wanted to address it, but somewhat reluctantly agreed with Jack so we moved to the next issue. This may be an area for the attorneys to address with their clients.
- Jill has a question for the team: what is the definition of “major decisions” in reference to education, healthcare, etc.… on the parenting plan.
- Both parents had questions about the parenting plan section regarding who Jon resides with the majority of the time. “DESIGNATION FOR OTHER LEGAL PURPOSES.” I will explain more during our teleconference.
Respectfully submitted to the Collaborative Team for review.
What Collaborative Can Do
While this exploration of personalities, goals, and interests was particularly lengthy (and so was this blog), you can easily see how helpful the facilitator’s insights and suggestions can be for the team professionals, both in managing team meetings and the clients’ emotions, and also in smoothing the negotiation process.
Ultimately, this couple was able to resolve their conflicts in favor of the successful creation of an agreement with which they could both live. Surprisingly, Jane was included in that arrangement, as was counseling for Jon.
For more on the benefits of a collaborative divorce please reach out to me at Joryn@JorynJenkins.com or schedule a free consultation.
Learn more about collaborative divorce. Follow Open Palm Law.
Need advice now? Contact Joryn!
About this week’s author, Joryn Jenkins.
Joryn, attorney and Open Palm Founder, began her own firm here in Tampa after a 14-year career in law, two of which she served as a professor of law at Stetson University. She is a recipient of the prestigious A. Sherman Christensen Award, an honor bestowed in the United States Supreme Court upon those who have provided exceptional leadership in the American Inns of Court Movement. For more information on Joryn’s professional experience, take a look at her resume.
