Understanding Interests vs. Positions in Collaborative Law

When navigating the complexities of a family law dispute, the difference between interests and positions is pivotal. This distinction is particularly crucial in the context of collaborative law, where the aim is to reach a mutually beneficial resolution without the adversarial nature of traditional litigation. Let's delve into what these terms mean and how they impact the collaborative process.

What Are Positions?

Positions are the explicit demands or outcomes that parties state they want in a dispute. They are often rigid and specific, reflecting what a person believes they must have to consider the resolution successful. In a divorce, common positions might include:

• "I want the house."
• "I want full custody of the children."
• "I need alimony of $2,000 per month."

These positions are often driven by underlying needs, fears, and desires but are typically expressed as non-negotiable demands. Positions can create a zero-sum game, where one party's gain is seen as the other's loss.

What Are Interests?

Interests, on the other hand, are the underlying reasons, needs, desires, and concerns that motivate a person's position. They are less about the specific outcomes and more about the underlying motivations and goals. Interests in a divorce context might include:

• A stable living environment for the children.
• Financial security and independence.
• Maintaining a sense of fairness and respect.

By focusing on interests rather than positions, parties can uncover the true motivations behind their demands. This understanding can open the door to creative solutions that satisfy both parties' core needs.

The Role of Interests and Positions in Collaborative Law

In collaborative law, the emphasis is on understanding and addressing interests rather than rigidly adhering to positions. This shift in focus can transform the negotiation process in several key ways:

1. Promotes Open Communication: When parties discuss their interests, it encourages open, honest communication. Instead of making demands, they explain their needs and concerns, fostering a more cooperative atmosphere.
2. Encourages Creative Solutions: Understanding interests allows for more flexibility in finding solutions. For example, if both parties' interest is financial stability, they might find various ways to achieve that beyond one party receiving a set amount of alimony.
3. Reduces Conflict: Positions often lead to entrenched standoffs, where neither party is willing to compromise. By focusing on interests, parties are more likely to find common ground and work together to find mutually acceptable solutions.
4. Ensures Long-Term Satisfaction: Solutions that address underlying interests are more likely to be satisfactory and sustainable in the long term. When both parties feel their core needs have been met, they are more likely to comply with the agreement and maintain a positive relationship post-divorce.

Practical Application in Collaborative Law

To effectively shift from positions to interests collaborative professionals will:

• Ask Open-Ended Questions: Encourage parties to explain why they hold certain positions. Questions like "Can you tell me why having the house is important to you?" can reveal underlying interests.
• Identify Common Interests: Look for interests that both parties share. Common ground can be a foundation for building mutually agreeable solutions.
• Explore Multiple Options: Brainstorm various ways to meet each party's interests. This flexibility can uncover creative solutions that might not have been apparent initially.
• Remain Empathetic: Show empathy and understanding towards each party's interests. This builds trust and encourages cooperation.

Conclusion

In the collaborative law process, distinguishing between interests and positions is essential for achieving fair and lasting resolutions. By focusing on interests, parties can move beyond adversarial demands and work together to create solutions that genuinely address their needs and concerns. This approach not only reduces conflict but also lays the groundwork for a more amicable post-divorce relationship, benefiting all involved.

By embracing the principles of interest-based negotiation, collaborative law practitioners can help clients navigate their disputes with empathy, creativity, and a focus on long-term satisfaction.