Generally, many people are unaware of the advantages of negotiation techniques. One major reason is that parties are usually more focused on how to get their legal issue resolved easily and quickly at the expense of creating unnecessary emotional harm and stress to the other party, their children, and other family members. Negotiation requires time, effort, and respect. If successful, negotiations can help individuals address their concerns and resolve their legal issues with respect, cooperation, and compromise.
There are generally two forms of negotiations: Positional Bargaining and Interest-Based Bargaining. Positional Bargaining begins when each party identifies a particular position early in the process by thinking only of his or her own wants and needs. The parties present positions and solutions to each other in the form of offers and demands. The parties usually engage in several rounds of offers and demands to address their multiple needs and changing positions. Settlement is reached once the parties compromise on their positions. Positional Bargaining can often feel like an adversarial battle because the other party is seen as an opponent. Sharing information is not seen as desirable, misinformation and threats are used often, and a win for one party means a loss to the other party.
Interest-based bargaining focuses on the underlying concerns, needs, and interests of the parties. This form of negotiation involves joint problem-solving in which both parties explore different legal issues in addressing all of their needs. During this process, lawyers are present to help both parties understand the complexities of law and their particular legal situations. Solutions are built to meet as many interests and needs as possible for all of the parties involved. Interest-based bargaining views the other party as a cooperative problem-solver. One party wins only if all the parties come away with a reasonable solution. Sharing information is valued and is important for problem solving. This form of negotiation not only builds trust between the parties, but also tends to build trust for the future. This is particularly useful when continuing relationships is important or necessary, especially if the family law issue involves children. Interest-based bargaining is a valuable resource that has become the centerpiece of the collaborative law process.