Family Law - Collaborative Practice

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In simple terms...

• A position is what someone says they want.
• An interest is why they want it.

Positions = Demands or Outcomes

Positions are often fixed and stated in absolute terms. For example:

• “I want full custody.”
• “I’m keeping the house.”
• “He doesn’t get a dime of my pension.”
   

These can create an “us vs. them” dynamic, especially in litigation, where each side is trying to win their position...

Interests = Needs, Concerns & Motivations

Interests are the underlying reasons behind a person’s position, in other words, the values, goals, and fears that drive their stance. For example:

• The interest behind “I want full custody” might be:
    → “I’m afraid of losing time with my children” or
    → “I want to make sure they have stability during school.”
• The interest behind “I’m keeping the house” might be:
    → “I don’t want to uproot the kids” or
    → “It’s the only place I feel secure right now.”
   

In collaborative practice, we work to uncover interests, because once we know why someone wants something, it’s often easier to find solutions. When both parties are willing to explore each other’s interests, it shifts the tone from “how do I win?” to “how can we both get what we truly need?”

When couples separate, the approach they choose can shape not only the outcome, but also their future. Here’s how the collaborative approach differs from the adversarial one:

Collaborative Approach

• Tone: Cooperative, problem-solving, future-focused.
• Method: Each person has a specially trained collaborative lawyer, and everyone commits to working outside of court.
• Communication: May include neutral professionals to help resolve issues efficiently and constructively.
• Voluntary: Each party agrees to be part of the process, and signs a Participation Agreement agreeing to not take the matter to court.

Adversarial Approach

• Tone: Oppositional, with each side advocating against the other.
• Method: Lawyers negotiate on their client’s behalf or take the matter to court if agreement can’t be reached.
• Communication: Often limited or conducted through lawyers.
• Compulsory: A party can be taken to court, whether they want to or not.

In summary

The collaborative process emphasizes dignity, dialogue, and durable solutions. Both approaches to separation are legal and valid! However, collaborative practice is designed for those who want a more peaceful way to separate and want to do so outside the courtroom.