Despite the group problem solving that takes place in a collaborative divorce, sometimes spouses and their lawyers get stuck. We see it in our Oregon Collaborative Law cases, and getting past a sticking point is critical to success in the collaborative process. Collaboratively trained lawyer Dick Price of Texas has a great collaborative blog with insightful posts on the collaborative process. He recently wrote a post about how to get out of an impasse in a collaborative law case. His article follows:
5 Tips for Getting out of an Impasse
Sometimes, no matter how hard you try, it seems like you reach a dead end with your spouse on an issue in a Collaborative Law case. It happened while you were together, and it shouldn’t be surprising that it still happens after you split up. You’ve thought about possible approaches and made plenty of suggestions, but no agreement seems forthcoming. While persistence can be a virtue in some situations, it can simply lead to frustration in others. If you keep trying the same tactics that haven’t worked on the same issues, you probably aren’t going to reach an agreement. What you need is a change. Here are five brief possibilities to help you get out of a negotiation rut and into an agreement.
1. Expand the pie. Review the situation and come up with some other possibilities. If you have gotten down to a choice between two options and neither party is willing to agree to the other side’s choice, then back up and come up with some other choices. For example, if the decision is about who will take care of the children after school, and each parent wants a different grandparent to be in charge, maybe you should come up with other possible caregivers. If you rule out the current choices and look for others, you may come up with another satisfactory choice you had overlooked. Avoid assumptions about how the issues should be decided. Open up your imagination to look for other solutions. Get out of the rut.
2. Expand your point of view. Oftentimes, we focus so much on our own thoughts and ideas that we begin to have trouble understanding how anyone could possibly think another way on an issue. When that happens in negotiations, that narrowing of focus can lead to impasse. One solution is to listen to the other party and then reflect back to him or her what is being said. If you can just put into your own words what the other side is saying or asking for, it can increase your understanding of their position and may open up your thoughts to new possibilities. In some Collaborative joint meetings, it has been helpful to ask each party to state the other party’s position on an issue and to explain why the party favors that position. It is also common, in preparation for Collabortive meetings or mediations or just plain negotiations at the courthouse, to have my client tell me what the other party would say about various issues. That helps me understand, but it also helps each client/party who works on that. Greater understanding of the issues and the other party can help lead to agreement.
3. Go back to your broad goals. It is very easy in negotiations to get drawn into discussions of small points. As you get into the smaller, lower-level goals, the options available are reduced and the potential for impasse increases. Sometimes you get off track and spend time on things that are irrelevant or just marginally useful. One way to get out of that trap is to stop the discussion and go back to your goals. For example, if you are stuck in a discussion about whether to take part of a retirement account or keep the house (and its equity), it can be helpful to review your major goals. If one of the goals was to maximize your retirement resources, then you probably need to take the retirement account. If a goal was to keep a stable home for the children, you might want to keep the house. If your goal was to obtain or have access to cash, and if you can realistically sell the house quickly, then you would probably want to get the house and sell it. Without constantly keeping the goals in mind, sometimes parties get into emotional arguments over assets because they “love” the house or because their hard work created the retirement account. The goals are more neutral and should always be the ideal in mind as the parties negotiate.
Another problem that frequently occurs is that you have gone from macro level goals to micro level goals. In other words, instead of trying to create ways to stay in daily contact with your child (macro goal), you get into an argument about whether your spouse must guarantee that s/he will be home at a certain hour (micro goal), rather than looking at it broadly and trying to find as many ways as possible to communicate with your child. Dealing with the issues at a broader level increases the number of opportunities to find solutions.
4. Get professional help. We usually work in the team model, using two attorneys, a neutral financial professional (FP) and a neutral mental health professional (MHP). We sometimes have a separate child specialist. The FP and MHP have been extremely helpful in cases where the parties get stuck. On financial issues, the financial professional can ask the right questions as well as suggest alternative solutions. The MHP can help the process generally by redirecting attention to constructive areas and also by maintaining a safe atmosphere for the parties to express themselves. Being perceived as neutrals gives the FP and MHP much more credibility and effectiveness than they would have if they were linked to just one party.
5. Start with areas of agreement. If you come to a standstill somewhere, you should consider switching topics and working on subjects where you expect to agree. Then you can build some momentum. For example, if you get stuck on how to divide up the bills, you might work on how to divide up the motor vehicles or clarify the holiday visitation schedule or clarify college plans for the kids. There are always some areas where the parties will easily agree, and even reaching easy agreements can result in good feelings and a willingness to cooperate. Of course, that doesn’t mean that both sides will agree on everything once they start agreeing, but the momentum can be a helpful force for you.
Conclusion: It’s not unusual in a Collaborative Law case to get stuck more than once. Collaborative Law is not necessarily an easy process to work in, but the results are so much better than in litigation that it is worth the effort. When those times come and you start to realize that you are at an impasse point, try out one or more of the above techniques. They should be great tools to help you reach a successful conclusion for your clients.