Don’t Be Tricked by the Traditional Family Law System into Making a Bad Deal! by Kenneth H. Waldron, Ph.D. & Allan R. Koritzinsky, J.D.
Originally published on their website blog: The Divorce Doctors
See: www.thedivorcedoctor.net for more…
In business planning, a boss or committee in the business, will develop a Strategic Intention for the business, a Value Proposition and Standards by which to measure the success of the business. Strategic Intention is the goal of the business – what is the product or service that the business wants the customer to receive. The development of a Value Proposition is the focus on the experience of the customer going through the process of receiving the product or service. Standards are the axioms by which the outcome is judged.
For example, a restaurant has the Strategic Intention of providing a dining experience that was worth the money paid for it. Restaurants thrive or go out of business if they fail to meet this Strategic Intention. The Value Proposition fleshes out how the restaurant is going to accomplish the Strategic Intention. This includes everything that happens from the moment someone calls for a reservation, to the menu and pricing, to what service people wear, to how the food is prepared and delivered, to how clean is the bathroom and to even how easy it is to park the car. The Standards by which the restaurant measures success are typically the reviews written by journalists and former customers.
In the family law legal system, there is no clear Strategic Intention focused on the customers – divorcing parties. The Strategic Intention is focused on granting a divorce with legal outcomes, which has more to do with the attorneys and the court than the parties. This seduces the parties into the world of the attorneys and focuses them on legal outcomes rather than their long-term financial and family goals. In an amicable divorce, the parties resist this temptation and maintain a focus on their goals, not the legal outcomes at the time of the divorce.
What are the Value Propositions of the family law legal system? The experience of the customer is largely ignored, except perhaps by the attorneys who need repeat business. The Court, however, has a captive audience and focuses on the needs and interests of the system, whether or not that gives the customer a positive experience.
Likewise, the Standard by which the process is measured is simply did the divorce become final. There is no Standard that focuses on the quality of the lives of the parties following the final divorce.
Does the current family law system focus on a Plan (meaning a settlement or Court decision) for reaching long-term goals for both parties? The focus tends to be on legal outcomes: custody of the children; division of property; support, rather than a good family and financial plan for reaching long term goals. This tricks parties into thinking the divorce is the final day of judgment of divorce, not their lives following the divorce. Like a wedding is not a marriage; a judgment of divorce is not a divorce. The divorce is everything that happens after the judgment.
John Nash was the subject of a famous book and movie, A Beautiful Mind. Hewas a mathematician, and like many others who facilitated some of the great advances in our understanding of reality, he had an insight about how and why people make the choices that they make. He is most famous for what is called the Nash Equilibrium.
However, John Nash had a more interesting insight: that by cooperating before competing in negotiations, two people can increase the value of the outcome for both of them.
This seems counter-intuitive, but subsequent research has found this to be quite true.
What causes the Nash Principle to be true in divorce is that payoffs have both an objective value anda subjective value. A house has a market value (objective) but also has meaning to people that might make it worth more or less (subjective). By including subjective values in negotiations, parties can increase the value for both of them.
What does all this have to do with divorce and goals? By both parties to a divorce, and both attorneys sharing information about the parties’ long-term goals, negotiations can begin as a cooperative effort to help both parties reach their goals with legal outcomes that make that possible- and even more likely. In this way, the parties grow the pie so that, when they each get a piece, they each get more than half. Research shows that approaching negotiations this way, the pie can grow to 146%. Therefore, theoretically each party can get 73% of the pie, if they go for an equal split.
This might seem difficult to believe, unless one accepts that there are subjective payoffs to the manner in which property, income and time with children are distributed. However, that subjective payoff value comes into play only if the distribution focuses primarily on helping both parties reach long-term financial and family goals- not prescribed legal outcomes.
For example, an unequal division of property might be a better plan for reaching goals than an equal or even equitable division, when the subjective value of those goals are considered. For example, assume that a wife wants to continue to live in the house and neighborhood with a mortgage that she can afford, and further assume that the husband wants to move to a cabin near a lake to fish and write. In such a scenario, the wife might receive the bulk of the property, and the husband might be able to live the simple life he desires. The point is for both parties to reach goals, not to compete selfishly for the best deal at the time of a divorce.
The Strategic Intention in such an approach is to optimize the objective andsubjective values to both parties in a goal-based planning approach. To flesh out the Value Proposition, attorneys would see themselves as planners with special knowledge and would work cooperatively, first to elicit the long-term goals of the parties in order to grow the pie. When disagreements come up with regard to how to reach those goals, attorneys could see themselves as helping resolve disagreements by optimizing the solutions. At the end of the process, the attorneys would then structure the legal outcomes to enact the Plan.
The take-away of this Booklet is a simple one: focus on goals of both parties, with their objective and subjective values, before discussing positions and begin negotiations with a cooperative effort to grow the pie.