| This article was first published in the California Divorce Magazine
and are reprinted here with their full permission. |
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The Art of
Negotiation
How to reach an agreement that's
both acceptable and affordable.
By Marjorie L. Engel and Diana D. Gould
There's a common pattern to all negotiations: a cycle of initial contact, planning
(research, goals, strategies, and tactics), and one or more negotiating sessions that lead
to a signed agreement, complete with provisions to ensure its implementation.
There are two basic components to any
divorce negotiation: what is affordable and what is personally acceptable. The objective
is to find a reasonable and legally acceptable balance between them.
Your first experience in negotiating starts
with your own lawyer. The two of you must work together until you achieve a meeting of the
minds so that what you want can be spelled out in the first draft of the separation
agreement. When you're ready for the first negotiating session with your spouse and the
other lawyer, how will you approach it?
Thinking
Logically
"Most of our so-called reasoning
consists in finding arguments for going on believing as we already do." -- The Mind
in the Making, James Harvey Robinson When women use accepted business logic in preparing
for a divorce, they may be perceived as ruthless, calculating, and manipulative. When men
use accepted business logic in preparing for a divorce, they are usually perceived as
being practical, logical, and direct. Regardless of clichés and biases, the reality is
that organized and rational thinking is a must for both men and women if spouses are going
to create a mutually satisfactory separation agreement in our family court system.
Be concrete in your ideas and remain open
to reason. Ask questions until you're satisfied about your spouse's basis for reasoning.
Be prepared to answer questions that clarify the integrity of your position. Be as tough
as you want where a problem needs resolution, but be soft on the people involved.
If you haven't already done so, you need to
analyze and formulate your objectives in order to actively participate in your own future.
You must gather together the facts about what you have, what you want now, and what you
wish to accomplish by the time you've changed the marriage vow "I do" to the
divorce disclaimer "I don't anymore."
The sooner you learn to put yourself into
your spouse's shoes and ask, "What would I do if I were you?" the sooner you'll
be ready to arrive at a mutually acceptable separation agreement.
Entering
Negotiations
Bargaining for the future welfare of
yourself and your family is no picnic. Here's a collection of tips offered by some
divorcing couples that will walk you through the process. They refer to both the personal
and the practical sides of negotiating.
- Request that negotiations be held where the atmosphere is
quiet and professional.
- Be prompt in attendance.
- Dress the way that will make you feel the most comfortable
for the setting of the meeting.
- Make sure you have a written agenda from your lawyer.
- Be prepared to take notes and check off each item as it is
completed.
- Be sure to have copies of whatever documents you have been
asked to bring.
- Sit tall and use direct eye contact as much as you can. Body
language "speaks loudly."
- Speak in your normal tone of voice. (You're not on stage,
even though you may feel like it.)
- Listen quietly and patiently to what is being said.
- Make sure that you have equal opportunity to voice your
opinions or disagreement.
- Try to stay in the first person when you speak. (Don't be
afraid of the word "I." In fact, present all of your feelings, facts, and
observations in the "I" mode, for example, "I think we ought to...,"
and "I defend this issue on the basis that...")
- Try not to be defensive about your ideas and be open to
advice -- even constructive criticism.
- Refuse to discuss business and personal matters in the same
conversation.
- Don't succumb to pressure for an immediate response.
(Request a minute to think, or a "time-out" to discuss the matter with your
lawyer.)
- Never be forced into a decision -- even if it's one that
your lawyer approves. (If you aren't sure, table the issue so that you have time to review
your material and to think.)
- When you need to release the tension/frustration/irritation
that builds up during negotiating sessions, take a couple of deep breaths from the
diaphragm and let them out slowly.
- Don't use alcohol or drugs to calm your nerves during these
times.
The
Bargaining Table
Everything is negotiable and anything can
be used as a tool for negotiations. Go to the bargaining table prepared for promises to be
exchanged and deals to be closed.
It's not a matter of simply putting a value
on everything when you are working out what you want or what you're willing to give in a
separation agreement. The bargaining process requires setting three different basic
values:
- The least you would be willing to give or give up.
- The most you would be willing to give or give up.
- The bottom line you would be willing to agree upon.
Divorcing couples tend to think in terms of
things they want (assets) and frequently forget about what they don't want (liabilities).
Remember: ownership of items such as debts, a bad piece of property, and lawyer's fees
must also be negotiated.
When you reach a stalemate, the lawyers
should be able to provide information about how a similar situation has been previously
handled within the judicial community where your case is being processed.
The bargaining table is only used to
resolve previously undecided issues. As you reach agreement on each issue, consider that
topic closed. Agreements never come together if you keep rehashing what was supposedly
already settled (in fact, they're more likely to fall apart). Every agreement must adapt
to new circumstances or information, but too many new issues late in the game cast doubt
on the good faith of what was previously settled.
Avoiding A
Free-For-All
Divorce negotiations can be traumatic. In
addition to the business at hand, it's very easy to get trapped into old emotional
patterns when your spouse begins to act in predictable ways. Either one of you can become
overly defensive or hostile.
How do you respond to threats or defuse
anger? What happens if the meeting starts to get ugly?
When you and your lawyer discussed your
divorce files, especially the profiles and information on extenuating circumstances, you
anticipated the danger points and prepared suitable ways of coping. However, when both
spouses are wound up, something totally innocuous can trigger an outrageous response. How
can it be dealt with right then and there?
First of all, there should be a time-out to
cool down the emotions before returning to the facts. Then allow your lawyers to summarize
the situation. If new issues come to light through an emotional outburst, they will
require discussion and verification. Then a decision can be made about how this new
information will affect the developing agreement.
When To Be
Reasonable
Not all divorces are adversarial. Not all
agreements are structured from long and bitter disagreements over who gets what. Just
because you're getting a divorce doesn't mean you can't continue to work together.
Be open to brainstorming. If you're at an
impasse or seem to be totally deadlocked, you can always flip a coin. Seriously, the very
idea that you have only a 50-50 chance of "winning" usually revives the interest
in negotiating. If the other side won't negotiate, don't attack his or her position --
look behind it to try to determine the motivation for the refusal to negotiate.
Helpful
Phrases and Questions
Here are some useful model statements to
use if the proceedings stall or if you encounter other difficulties:
- "Please correct me if I'm wrong..."
- "I appreciate what we've done thus far..."
- "My basic concern is fairness."
- "I'd like to settle this on a basis of principle, not
power."
- "Could we go over this once more to make sure that I
understand clearly?"
- "What is the principle behind your request?"
- "Let me show you where I'm having trouble with
that."
- "A more equitable solution might be..."
Six Deadly
Obstacles to Negotiation
The deadly sins can never be seen or
imagined more clearly than in the process of divorce. When any of the negative patterns of
a marriage are brought to the negotiating table, the battle will be long and difficult.
- Greed will make any reasonable financial negotiation
impossible.
- Anger will waste time and energy.
- Lust will fire up old memories that might get in the way.
- Jealousy will get you nowhere -- it's not your relationship
anymore.
- Pride causes stalemates.
- Fear is perhaps the greatest sin of all.
Fear can be the worst enemy of good
negotiation: fear of rejection and loss of position, property, or place in the community.
There are also the fears of loneliness and of having to start all over again; of personal
and financial hardship; and of not being able to handle all that is ahead. The more
dependent you have been upon your spouse -- financially, personally, or emotionally -- the
deeper the roots of fear. The fear of negotiating with a spouse who is more powerful, more
prestigious, or more "important" than you creates problems, particularly if the
spouse is well-connected or has a prominent family.
Under these circumstances, sitting down at
a bargaining table seems like risky business. When there are significant emotional or
practical inequities, you must do whatever you can to change the expected patterns of your
position. Use all available resources: books, counseling, and so forth. If you can avoid
succumbing to predictable old ways and if you have a lawyer who isn't easily impressed or
intimidated, you'll be able to balance the pressures against you by using strategies that
are different from those expected from you.
Whatever the obstacles, the basic rule in
negotiating is to understand what options exist for both of you. Insist upon realistic
objectives. Focus on the problems, not the person. Try to find a different approach to the
same problem; reframing a seemingly insoluble problem may solve it.
It's not necessarily all the things you
know that will help you during negotiations; it's what you can think of at the right
moment to back your issues and arguments. This is where your files of prepared information
can be invaluable.
Recognizing
Coercive Tactics
What's fair and what's unfair in the arena
of divorce? What does it mean to step over the bounds of common decency? Just what kind of
tactics are allowable? What one spouse considers good strategy might be seen as deceptive
to the other, depending upon the motives of negotiation.
An early step in predicting what your
negotiations will be like is to try to recognize the tactics being used. If your divorce
is adversarial, you're likely to face tactics designed to wear you down such as:
- Deliberate deceptions
- Misrepresentation of facts
- Less than full disclosure
- Building in complicated compliance features
- Psychological warfare
- Stressful situations
- Personal attacks
- Silent treatment
- Withholding money or children
- Playing on spouse's sense of guilt
- Body language
- Black-hat/white-hat designations
- Threats
- Dependency and helplessness Positional pressures
- Refusal to negotiate
- Unreasonable demands
- Escalating demands
- Hard-heartedness
- Calculating delays
- Hiring a "barracuda" lawyer
- Control versus dependency
"Spouse
Blindness"
A spouse who wants to remain in a difficult
marriage even after the relationship has become untenable is usually suffering from what
we call "spouse blindness": a condition whereby that spouse is unable to see the
marriage as being anything other than perfectly acceptable. This delusion can continue up
to the very day of -- or even long after -- being served with divorce papers.
Getting over spouse blindness requires time
to see the issues clearly and to heal some of the hurt. Only then will it be possible to
develop a balanced separation agreement. Unfortunately, having finally made the decision
to divorce, the departing spouse is usually in a hurry to get it over with. The
"blind" spouse will often try to drag the divorce out interminably in the hope
of a change of heart. The departing spouse and lawyer must be prepared to set
compassionate limits for a reasonable transition period.
This article has been edited and excerpted
from The Divorce Decisions Workbook: A Planning and Action Guide by Marjorie L. Engel and
Diana D. Gould. Designed to help individuals prepare in advance for every phase of the
divorce process, this workbook is available at better bookstores.
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