We have the late Stephen Covey to thank for the wonderful concept of “win-win thinking.”  Win-win seeks to find solutions that serve as many interests as possible.  Win-lose thinking sees the world as populated by 2 types of people:  winners and losers.  According to a win-lose paradigm, there is a finite amount of value, stuff or good in the world, and winners are the ones who get the biggest piece.  Losers are left with the smaller piece.

Sadly, the vast majority of divorce professional advice out there assumes the win-lose paradigm.  As lawyers, we are trained in this paradigm.  I have been to countless seminars teaching lawyers to “put the other side at risk.”  In this paradigm, the only consideration is what a court will ultimately do in a certain situation.  Many neutrals or mediators out there are retired family law practitioners or judges who see their role as simply helping the parties figure out who would win if the case went to trial.

For most of you, your family situation is a lot more complicated than running the support calculator or splitting the retirement account 50-50.  Consider a divorcing person who is retired and in poor health.  Many times such people will make their last years on Earth miserable fighting it out in court, when getting more money (what courts are good at deciding) really isn’t their most important value.  Often times, when people are close to retirement, a huge legal battle only serves to wipe out what’s left of their savings, at at time when they need every penny to reach their financial goals.

Too many lawyers see a divorce case as a game of brinksmanship, where the goal is to create enough fear and misery in the other party to force a settlement.  Lawyers are trained to work in a system with fixed rules and certain defined outcomes.  The paradigm of the legal system is “Petitioner versus Respondent,” or “Husband versus Wife” or “Kramer versus Kramer.”  Frankly, too many of my colleagues can’t see outside the box of this very limiting paradigm.

How to Think “Win-Win.”

Win-win thinking begins by making a list of the parties’ interests.  Here are some common interests in divorce cases:

  • Financial ability to create a home for the children;
  • Financial ability to retire at a given age;
  • Availability of health insurance or healthcare for all parties;
  • Frequent and satisfying contact between each party and the children;
  • Ability to live freely and independently from the control of the other party;
  • Ability to create your own family life after divorce;
  • Ability to have a satisfying career after divorce;
  • Avoiding the pain and expense of litigation.

Next, what are the resources available to maximize these values or interests?  These are sources of income, assets, friends, family, contacts, and the like.

Finally, brainstorm solutions without regard to what a court would do.  Think outside the box.  Remember, there are no stupid ideas when you’re brainstorming.

I recommend that you hire professionals who share a win-win attitude.  If your attorney refuses to problem solve, insisting instead that your case be a constant frontal assault against enemy lines, remember that you are in control of your case.  The attorney works for you and owes you a duty of loyalty.

And failing this, you have the right to get the other party on the phone and suggest that you cooperate to find solutions.  One solution is to find a win-win-thinking mediator to facilitate a discussion and help you solve problems.

I pray that you find solutions to your problems, because nothing is more painful than slugging it out with your ex in court, only to have a lousy solution imposed on you by an outside decision maker.  Remember to …

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

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