INTRODUCTION: A TALE OF TWO WOLVES

This article is built upon my 33 years of experience in divorce litigation, mediation, arbitration, and, most recently, collaborative law. Let me begin with a Native American parable.

A Cherokee grandson came to his Grandfather with feelings of deep anger at a friend who had done him an injustice. Said the Grandfather, “Let me tell you a story.

“I, too, at times, have felt a great hate for those who have taken so much from me, with no sorrow for what they have done,” said his Grandfather.

“But hate wears you down, and does not hurt your enemy. It is like drinking poison and wishing your enemy would die. I have struggled with these feelings many times,” he continued. “It is as if there are two wolves living inside me. One is good and hurts no one. He lives in harmony with all around him, and does not take offense when no offense was intended. He will only fight when it is right to do so, and in the right way.

“But the other wolf, ah! He is full of anger. The littlest thing will set him into a fit of temper. He fights everyone, all the time, for no reason. He cannot think because his anger and hate are so great. It is helpless anger, for his anger will change nothing.

“Sometimes, it is hard to live with these two wolves inside me,” said the Grandfather, “for both of them try to dominate my spirit.”

The boy looked intently into his Grandfather’s eyes and asked, “Which one wins, Grandfather?”

The Grandfather smiled and said quietly, “The one I feed.”

When I advise prospective and current clients that cooperation always works better than contention and adversity in divorce, some of them look at me as if I have two heads. While cooperation and divorce do not go together in every case, people would be surprised at how effective it can be in most cases, even when folks do not get along, even when they cannot sit in a room together. Let us examine the how and the why.

MOST CASES SETTLE

Less than 2% of divorce cases end up going to trial. That means that settlement is achieved 98% of the time. And that does not even count the matters that resolve before any pleadings are filed with the court system. Yet Family Court is set up as if the 2% solution applies to 100% of the court’s docket. The judges pressure the lawyers and the parties to settle, but that may not happen until a case has been in the system for some time, with parties getting more and more frustrated and alienated from each other with each passing day. The secret that too few discuss up front? The sooner the two of you figure out how to cooperate, the better off the children and parents will be. The wolf that wins is the wolf each of you chooses to feed.

COOPERATION IS THE COIN OF THE REALM

Did you ever notice how hockey players engage in a fistfight on the ice? Each one holds on to the other’s uniform while trying to land a punch. Why? Because without the balance provided by the other combatant, both of them would surely fall down on the ice. What are they doing when they grab onto each other without saying a word about it? They are cooperating. It happens completely naturally. There are underlying truths that these combatants simply understand, of which gravity is one.

When people are not getting along, they presume there is nothing on which they can possibly agree. That idea is dangerous, because it often prevents both people from getting what they want and need, without a word being spoken. The parties agree to give up without trying, which is a preventable loss. In fact, disputing parties often agree on many things.

Good negotiators understand that the best resolution between parties must be built from the bottom up, rather than the top down.

Feuding parties often rush to tackle the “big ticket” items. In divorce, these most often involve child custody, alimony, and division of property/debts. As soon as the parties hit impasse, they get ready for legal battle, presuming that failure to settle one of more of those items means settlement on any item is impossible.

In fact, good negotiators operate on the opposite belief: settle and solve “the little stuff” and build towards the more difficult points. Sometimes, small settlements lead inexorably to full settlements. Other times, the parties are well advised to take their settlement “wins” and leave the rest for resolution by arbitrators or judges. There is nothing wrong with getting three-quarters of a loaf in one venue and the balance in another. Clearing away low friction items makes it easier to concentrate on the major issues, which, in turn, will yield to outside intervention faster, less expensively, and in a more focused and purposeful way.

COLLABORATION WORKS BETTER THAN CONTENTION

Here is another hidden truth to behold: party collaboration yields greater gains for both parties than either one could possibly attain in a win-lose forum like a trial or arbitration. Cooperation is like grease on a wheel: matters move forward faster — with less friction and more efficacy. In the dispute resolution setting, cooperation can be inexpensive, private, and highly successful. People can give to and get from one another much more than any arbitrator or judge could possibly direct from the outside. How is that possible?

Litigation and arbitration: each is a forum designed to declare winners and losers  — and often they turn into lose-lose propositions, including for the nominal winner, based upon time, money, and stress expended. Negotiations — whether done by parties alone, in collaborative divorce, or with mediator supervision — can provide a win-win (or work-work) outcome, focused on maximizing both parties’ gains. The intention is to go not for zero-sum outcomes, where my gain must come at your loss or vice versa, but rather for synergistic outcomes that realize the maximum gains available for both parties (i.e., one plus one equals three). In negotiations, people may grant one another what judges and arbitrators, by law, may have no power to direct.

Here is a simple example: Parties who are fighting do not cooperate in tax planning, tax filing, or tax-wise use of personal deductions and exemptions. Who benefits when the parties behave in this way? The IRS. Contending parties often file tax returns with inconsistent information or incongruent positions. Sometimes their tax filings trigger an IRS audit. People who do not get along well, even those who do not speak with one another, should be able figure out ways to save each other from unnecessary taxes. They can negotiate freely about deductions and exemptions, what tax filing status each will use, how they will divide any tax refunds, and the timing of tax return filing. Instead of a C minus outcome in a win-lose forum, the parties can truly go for the A+, a win-win outcome no judge or arbitrator will mandate. With a modicum of understanding and cooperation, parties will actually fare better with each other’s help than either one could do alone with a judge or arbitrator.

Takeaway point: You can be in a huge fight with someone and still agree to save on taxes.

This is a simple but powerful metaphor, and it is one example among many.

Here are some others:

Parties may jointly employ experts to reduce areas of factual dispute and interpretation on issues including child custody, alimony, and division of property and debts. They can cut the experts’ costs by one-half by cooperating in their use, reserving the right to a second opinion if either party is dissatisfied with the joint expert’s report.

People can respect each other’s upsets by properly and timely using lawyers, therapists, CPA’s, parenting coordinators, mediators, and other process mavens. All they have to do is agree to disagree — agreeably.

THE GOAL IS A HEALTHY DIVORCE

If the idea is to get the divorce completed timely, privately, inexpensively, efficiently, effectively, and well, which approach is going to work better: trial by combat or a cooperative model? With combat, you are pretty much guaranteed two to four years of expensive and frustrating struggles, probably followed by more years of post-judgment fighting. With cooperation, you are showing respect for each other and self. You are saying, “Let’s be mutually fair, maximize gains, remember why we got together in the first place, and give our children and ourselves a chance to heal and move on in life with the least amount of scarring.”

There is such a thing as a “healthy divorce”. And cooperation is at its root. People who refuse to be in the same room together may still cooperate effectively. To do so, they need good intentions and good interveners (lawyers, therapists, CPA’s, parenting coordinators, mediators, and other subject matter and process experts).

CONCLUSION

For parties who want to hurt each other financially, wound each other emotionally, and have the man or woman in the black robe declare the evils of the other party, what I have written above will make little sense to you, and you will probably ignore it. For everyone else, constructive problem-solving is priceless, and you should embrace it.

For those of you who say, “Does it really take a village to get these people divorced?” – Here is my response: I would rather see people use the tools they need, and spend what they need, to get the job done right the first time. I would rather see people get divorced FROM one another and move on, than see them fight, scratch, and bite one another in an inefficient, ineffective, and unwell process. In the latter scenario, the best they can do is get divorced TO one another — permanently and badly — until death do their angry wolves part.