A Recipe for Successful Settlement in Your Family Law Case
The Difference Between Positions and Interests
Written by: Stefano Ceroni
Generally speaking, it is the objective of anyone who is involved in a debate, argument, dispute or formal litigation to advocate for a particular position in order to obtain a result that they feel best serves their individual or their client’s interests. The problem, however, is that arguing a position in order to fulfill an interest is not always a recipe for successful settlement in your family law case.
Because… Positions, by their nature, are inherently adversarial. Meaning, in order to convince a party to accept your position, you must first convince them to give up their own.
For example, if your position is that you are entitled to $1,000 a month in spousal maintenance, but your ex believes you are only entitled to $500, then a settlement can only be reached if one or both of you relinquish your initial claim. The problem is, nobody likes doing this. Nobody likes this because relinquishing one’s position is the same thing as admitting defeat.
This is what makes traditional negotiation so hard. Because nobody ever wants to abandon their own positions, it is exceedingly difficult to settle any matter by trying to convince someone else that they were wrong and you were right.
So what do you do?
In come the interests!
Separating Positions From Interests
In order to help eliminate the stalemate that occurs when parties go back and forth arguing their positions, each party should begin to separate their underlying interests from what they are actually asking for.
How is this possible?
It’s possible because no one can have a defendable position without first having a reasonable underlying interest.
Don’t believe me? Let’s look again at the example from above:
Party A believes they are entitled to $1,000 a month in spousal maintenance. Party B believes that Party A is only entitled to $500. These are Party A and Party B’s positions.
But what about their interests?
Obviously, Party A is interested in obtaining additional financial support from party B. Okay, why? Is it because they need the additional $500 in order to make their rent payment? Or, is it because they believe they need it for their kid’s extracurricular activities? Or, is it simply because they want to punish Party B for cheating?
How about Party B, what is their interest?
Obviously, their interest is to keep as much of their own money as possible. Okay, but why is the additional $500 so important? Is it because they cannot afford the extra $500 on top of the $200 they pay in child support? Or, is it because they need that $500 to pay for their Mercedes lease? Or, is it because they need that money to pay for the kid’s private school tuition?
Without knowing exactly why Party A wants $1,000 or why Party B only wants to give $500, there is no way to come up with any alternative solutions, other than to split the baby and agree on $750. The problem is, $750 probably won’t work for either party.
However, if you are successful at uncovering why the parties are requesting the amount they are, you expand the available options for potential settlement. This is what I like to call interest-based negotiation.
For example, let’s say that Party A needed the extra $500 because they couldn’t cover their rent and Party B wanted the $500 because they needed it for the kid’s private school tuition. If this were the case, a possible solution could be for Party B to pay Party A the $500 so long as Party A agreed to enroll the kids in public school. Under this scenario, both parties’ financial interests would be mutually satisfied.
See how separating one’s interest from their position can help settle cases?
Let’s try another example…
Let’s say Party A will accept nothing less than having joint legal decision-making with final say authority. In turn, Party B will only settle for a pure joint legal decision-making arrangement. These are Party A and Party B’s positions.
Now let’s talk about their interests.
Why does Party A want final say authority? Is it because they think Party B will want their kids to go to a high school that Party A doesn’t like? Or, is it because they are worried Party B’s recreational use of marijuana will affect their decision-making when it comes to major medical issues? Or, is it because Party B is an atheist and Party A is very religious?
What about Party B, why do they not want to give Party A final say authority? Is it because they fear that Party A will move far away and change the kid’s school, thus altering the current parenting time arrangement? Or, is it because Party A is into alternative medicine and never takes the children to the doctor? Or, is it simply because Party A has a tendency to make major decisions without ever consulting Party B?
Depending on what Party A and Party B’s actual interests are, a very easy solution to both parties’ concerns may be available. For example, let’s say Party A’s real interest in having final say authority stems from their desire to raise the child in the Catholic faith. And maybe, Party B’s biggest interest for not allowing final-say stems from their fear that Party A would change the child’s school over Party B’s objection.
As a solution, the parties could agree to a pure joint legal decision-making arrangement with a stipulation that the child remain in their current school and be raised in the Catholic faith.
Uncovering the parties’ real interests allowed for this type of compromise to take place. Without knowing the parties’ interests, this workable solution may otherwise never have been realized. This is why it is so important to distinguish one’s positions from their actual interests when trying to resolve a dispute.
Seems easy enough, right?
The truth is, sometimes it is easy and sometimes it is not. In fact, many people, including lawyers, struggle with the distinction between positions and interests on a daily basis.
To test your knowledge, try your hand at the question below:
Which of the following statements are positions and which are underlying interests?
a. I would like three weeks of uninterrupted parenting time during the summer months;
b. In exchange for keeping the house, I will give you 65% of my 401(k);
c. I should have the kids four days out of every week because I spent more time with them growing-up;
d. I should have the kids every Saturday so I can teach them to play soccer. This is fair because I was a professional soccer player myself;
e. If you promise to bring the kids to Church every Sunday then I will agree to equal parenting time;
f. The kids should go to School A as opposed to School B because School A is ranked higher and closer to my house;
g. I will not agree to include bonuses in the child support worksheet because they are unpredictable and I am forced to work overtime to receive them.
Are you ready for the answer?
Answer: all of the statements above are positions.
You see, just because people sometimes choose to offer an explanation or defense along with their position doesn’t necessarily mean they are disclosing their real underlying interest.
For example, if you look at answer (f) above, you may have thought the underlying interest was for the kids to receive a better education and the parent to reduce their commute time. Now, although these are good assumptions, the real interest may be something very different. Maybe, the real interest was that the parent feared their child would get into drugs if they were not enrolled in a competitive school because they believed better schools had less drug use.
Well, what if I told you the competitively ranked School A located across the street from this parent’s house had a reputation for high drug use? Would the statement in answer (f) still be in line with the parents’ interest? Of course not!
As you can see from this example, making assumptions about a party’s interests when you have nothing but their positions to go off of is a very easy mistake to make. If, however, you are able to distinguish your opponent’s and your own interests from your stated positions, then you have found a recipe for successful settlement in your family law case. Expanding these opportunities is the key to finding a winning compromise and the best recipe for avoiding the unpredictability of the courtroom.