Process Determines Outcome

I thought about leaving this post at that, but I thought you might need more.  This week, I had a number of new clients.  With each client, I said that process determines outcome.  I explained it to them as I explain it to you.  When you come into the Trenches for a divorce or a custody determination, those cases always end with a divorce or a custody decision.  The basic steps you go through to reach that conclusion are always the same:  identify what you want, ask the questions that will give you the information that will help you get what you want, gather that information, develop solutions to reach your goal and evaluate those solutions to get to the end.  Same steps, no matter the process.  The difference here in the Trenches is how those steps are implemented.  That's process.

What process?  Well, there are basically 5:  litigation, negotiation, collaboration, mediation and kitchen table discussion.  

In litigation, the steps are formal and choreographed.  There's no opportunity for direct communication between parties, no opportunity to dig deep for needs and goals instead of positions, and no control over the evaluation process.  That last part is left to the judge, not the parties, a person who has never met them, and may have an entirely different outlook on life and parenting.  

Negotiation provides a little bit more control over the evaluation process, but usually the lawyers control how that works.  There's little if any direct communication. Again, it's very formal, arms length and positional, but at least the parties make the ultimate decision.  Usually that decision has a lot of relationship to what a judge might do.

Collaboration has a lot of opportunity for direct communication, communication can be more productive because professionals are there to help that discussion and provide information.  A weaker party is supported so everyone feels they have the facts and the space to make the decision that's right for them. The focus is on needs and not positions. In collaboration, parties develop skills they can take with them into the future and because there is no threat of court, everyone has the ability to craft creative solutions to their problems. The parties control their destiny both then and after they leave the Trenches. 

Mediation also has a lot of opportunity for direct communication.  The mediator is a true neutral, however, so there is no support at the table for the weaker party.  There is no education piece or assurance that everyone has all the facts.  It is assumed everyone will play by the rules and speak up for themselves.  Here also there is an opportunity for creative solutions because mediation focuses on needs  instead of positions.  The parties decide how everything will wind up.

Kitchen table is when two people sit down and talk about what makes sense for them.  They may not have all the information, they may not have the same bargaining power, and they may never address their needs.  Then again, they might. The parties have the most opportunity for communication and control.

How the information is gathered and shared has a huge effect on outcome.  The formal information and decision making processes are adversarial and serve to increase tensions between the parties, rather than reduce them.  They also serve to insulate the parties from the direct effects of the conflict.  The more informal methods dig deeper into the whys of each action and encourage a thoughtful solution.  They also require direct, face-to-face communication, and facing conflict head on.  That can be too uncomfortable for some, and dangerous for others.  Each process works for some people and not for others.  A professional's first job is to help a client determine which works for them.  It is the most important job we do.  Here in the Trenches.