Divorcing spouses are moving away from the traditional litigation model of dueling, aggressive lawyers, and more toward the cooperative alternative dispute resolution model of Oregon Collaborative Divorce. Whichever path clients take toward resolution, the reality is that most cases settle: they may settle early on or on the courthouse steps on the day of trial, but more than 90% of cases settle without a judge making the final determination. So if clients assume from the outset that their case will settle, the real question becomes “What is the best path to settlement?” Portland has seen a growing number of parties choosing the alternative disputes resolution option of Collaborative Divorce. This option is tailored to address family law disputes in a way that the court system cannot – it is a respectful, family-specific, interest-based process, wherein both parties (and their lawyers) agree not to litigate or threaten to litigate, and instead commit to resolving the case through interest-based negotiation.
Collaborative Divorce is tailored to address family law disputes. It was designed in recognition of the toxic stance that the adversarial system requires of clients and their lawyers. Practitioners recognized that it was unreasonable to expect people to get on the witness stand and argue about the division of assets or custody/parenting time issues, and then walk away the next day able to effectively co-parent. The Collaborative Divorce model asks clients to work together respectfully to build a new, post-divorce relationship built on the problem-solving methods followed in the Collaborative Divorce process. This sets clients up to be more successful in post-divorce matters, as they have developed their binding agreements together after considering their specific family’s needs.
Collaborative Divorce agreements are developed through “interested-based” negotiations. This is best described in comparison to the litigation model, which involves traditional “positional” negotiations. For example, Husband offers to pay Wife $2,000 in spousal support, and Wife wants $4,000 in spousal support, so they settle in the middle on $3,000. This solution often makes neither person happy and leaves both parties feeling unhappy, wondering if they should have asked for a more “unreasonable” position to start with to give more room for negotiating. In contrast, the Collaborative Divorce process begins with both parties sharing their underlying interests of goals. Husband’s goal may be to pay only enough support so that he can continue putting aside money for retirement. Wife’s goal may be to receive enough support so that she can continue working part-time to allow her to stay at home with the children. The Collaborative team would hear those goals and could choose to bring in a financial neutral, who would analyze for both parties what their respective budgets might look like post-divorce under a variety of support scenarios. This helps parties negotiate with information related to what is truly needed by each party, while also allowing each party to recognize the valid goals of the other. They may still end up at $3,000 in support, but both will feel better about the resolution.
Our Oregon Collaborative Divorce lawyers are happy to discuss alternative dispute resolutions, including the Collaborative Divorce process, during our initial consultations. You can also learn more about the Collaborative Divorce process and other process options through our website.
by Jill Brittle