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How to Negotiate Effectively During Mediation
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How to Negotiate Effectively During Mediation

Couples often have difficulty mediating their divorce effectively.   At this juncture, many of your expectations regarding trust, intimacy, and emotional support have been dashed.  You may be mourning the demise of the relationship and anxious about the future.  Sometimes, the effects of an affair are still rocking the relationship.  And through all of this emotional turmoil, your are expected to keep your children’s best interests in mind, make sound financial decisions, and bridge the gap between you and your soon-to-be ex-partner’s values and sense of what is right, wrong, and fair.

If you have selected the mediation process, you probably have some reason for wanting to avoid the litigation process.  You either want to split amicably, continue co-parenting smoothly, or want to avoid the financial and emotional cost of going to court.  And, yet, you don’t want to make a deal that you are going to regret and litigate at a later date, or that is going to be the cause of resentment and recrimination as you continue to co-parent. 

So, how can you be true to the intensity of your emotions but, at the same time, not perpetuate the discord of your marriage during the mediation process?   How do you minimize the discomfort of representing yourself and maximize the likelihood of being satisfied with the final deal?  In short, how do you mediate effectively? 

Preparation  –  Negotiate your marital settlement agreement from a fully informed perspective.  To prepare adequately, you should gather and share all relevant financial information before you start to negotiate.  To the extent necessary, ask for documentation to verify all amounts.  Providing mutual transparency into all the existing assets and debts is a court requirement and necessary for an atmosphere of trust in the mediation process. 

Be clear on the difference between what you need, what is available, and what is fair. “What you need” might necessitate examining daily expenses and making a future budget.  Financial planners can be helpful in this exercise. “What is available” can be verified as you gather all your financial information.  Make sure there is a correlation between what you are demanding and what is available to split.  (You used to have access to all of the community assets.  Now you don’t.  This is one of the painful realities of divorce.)  “What is fair” is trickier, as the question contains both a subjective and an objective component.  Sometimes parties come to me who are aligned on the issue of ongoing support.  But I rarely meet a payor /recipient of spousal/child support who is happy with the amount he/she will be paying/receiving.  And how the court would adjudicate the matter is a normative frame of reference that can’t be avoided when discussing support (divorced friends, concerned family members, and consulting attorneys are sure to bring this up), so make sure that you are informed via research or competent legal advice about how California law deals with the support issue.

Adjust Your Expectations  –  Remember that it is unlikely that you will be “happy” with the eventual financial arrangement.  While the family income and assets are going to remain as they were during the marriage, your joint expenses are going to increase now that you will be running two households.  You should be aiming for a settlement that balances what you need, what is available, and what is fair.  And, hopefully, you can create together a process that is respectful, creative, and productive.  But, at the very least, you are trying to get through a very painful period in your life and minimize your collateral and financial damage.  If you do this, that is a huge achievement.

Identify Interests  –  Think about your interests and make proposals that are commensurate with them.  And provide those interests to your ex when making a proposal (particularly for any stance that does not reflect a joint parenting schedule or 50/50 split of the assets), so that he/she understands your reasoning.  And think about your ex’s interests.  For instance, is there a quid pro quo that you can offer your ex (e.g., exchanging money for custodial time)?  Keep in mind the values of the other party (e.g., being the primary caretaker or being seen as an equal parent).  What are they most concerned about?  What can you offer them that will induce them to accept your proposal?  What are creative ways for you to get what you need, and still give the other side what he/she wants?

Be Ready to Bargain!  –  Come prepared to sessions with concrete proposals on which you are willing compromise.  Prioritize them, so that you focus on the most important interests in the negotiation and can let go of others.  Assume that you will not get everything you want.  The culture of negotiation necessitates give and take.  There is an expectation that you will move from your first offer.  A refusal to do so can be interpreted as a sign that you are being unreasonable.  If you pre-determine what is “fair” and present that as the only and final offer from which you are unwilling to budge, you risk alienating your negotiation partner and getting stuck in an impasse.   

Create a Bargaining Range –  Set high, but realistic, goals about what you hope to get out of the negotiation.  It is good to have something to strive for.  Also develop a bottom line – meaning, the point at which you would rather have a judge rule on your divorce.   But remember that it is irrational to fail to agree to something in mediation that the court would order anyway.  And keep in mind that it will cost the community coffers, if represented by attorneys, between $50,000 and $100,000 to get that ruling. 

Avoid Emotional Entanglement  – Don’t expect your soon-to-be-ex suddenly to validate your emotional point of view or to show up in the mediation in a way that is very different than how he/she behaved during the marriage. You will just be setting yourself up for disappointment.  I always tell the couples I work with:  You cannot solve during the divorce problems that you could not resolve during the marriage.  So calibrate your expectations and keep your eye on the prize.
 
Engage in a Different Conversation – Present yourself verbally in a way which is both authentic and constructive.  As this is a painful juncture in your life and a very difficult process, it is inevitable that emotions will rise to the surface.  At the same time, mediation is an opportunity to have a different conversation with your ex than the one you have been having up until now.  I find that keeping in mind four basic communication steps can help you achieve this goal.  They are: 

1)  Make a Neutral Observation
2)  Describe Your Feeling
3)  Articulate Your Needs
4)  Make a Specific Proposal
 
Make a Neutral Observation  –  Describe in neutral terms what you heard your ex proposing.  Or describe neutrally what is happening in the room.  For instance, rather than stating accusingly  “Your support offer is appalling!” say “You are offering me $2,000 a month.”   Rather than assuming “You think the children don’t need a father!” say “You are proposing that I spend every other weekend with the children.”

Describing your negotiating partner’s frustrating behavior in a relatively non-judgmental fashion creates the foundation for him/her to hear your concerns non-defensively.  This also increases the chances that, rather than just eliciting an angry or defensive response, he/she will continue in the negotiation with the desire to reach an agreement.  Think of this as simple cause and effect embedded in our DNA – unbridled anger or caustic criticism creates a “fight or flight” response.  The gentler the initial forray, the more gentle the reaction.

Describe Your Feelings  –  Take a moment to figure out and then express your vulnerable (non-angry) emotions.  What is the fundamental need not being met by your partner’s proposal and how do you feel about that?  For instance, beneath the anger in the examples above might be feelings of sadness (e.g. grieving over missed time with children), powerlessness (e.g. not being able to support yourself financially in the future), or loss of identity (e.g. losing one’s role as the children’s primary care taker).

To clarify the underlying emotions beneath the anger, try saying out loud the narrative running in your head about your situation.  Our emotions are often dictated by our interpretations of others’ actions, so it can be helpful to figure out that story.  For instance: “You are denying me access to my children.  You must not value my contributions as a co-parent.  I feel really sad about that!” or “When you don’t want to split the assets with me evenly, I think it must be because you don’t value my contributions to the marriage.  Wow, I feel really disrespected.”  Not only does sharing your story help you to gain emotional clarity, but it also allows your partner to correct an interpretation of his/ her behavior that wasn’t commensurate with his/her intentions (e.g. “I value your role as a caretaker, but I can’t resign myself to seeing the children less than I am see them now.”)  

Delving down to the vulnerable emotions can be difficult, particularly when the pain of divorce is still acute and the trust in your ex-partner so low.  Nevertheless, I tell clients with whom I mediate that they need to hone their internal dialogue before they can have an effective external communication.  This means digging deep beneath your anger to understand why your ex-partner’s positions or proposals are triggering you so negatively.  The vulnerable feeling at the center of your maelstrom is the place where you both are most likely to connect. 

Articulate Your Needs  –  State your interests or what you generally need in the settlement agreement.  This helps contextualize your proposal.  For instance, “It is important to me that I have quality time each week with the children.”  or “I need to know that I will be secure financially.”

Articulating your needs begins to shift the focus from your concrete proposal to your underlying concerns.   Your ex-partner may hear your negotiation stance, but may not understand why you feel so strongly about your position.  Surfacing your interest, which is broader than stating your position, expands the possibility of finding common ground and provides a compass towards creative resolution.

Make a Concrete Proposal  –  Finally, always conclude your remarks with a concrete proposal.  State with specificity what is it that your ex-partner can do to alleviate your intense emotions or satisfy your interests.  For instance, you might say “Let’s sit down now with our calendars and plan how we will divide up the holidays and vacation time with the children.”  Or “Please provide me with print outs of all our financial assets.”  Or “I propose that spousal support decrease over time.  Let’s discuss what would be suitable reasons for such an adjustment.” 

Making a specific proposal is a very critical step in the negotiation process.  All too often, parties come to mediation and articulate very strong emotions without ever articulating a counteroffer.  If all that is being stated is your dissatisfaction, the negotiation process descends back into old relationship dynamics.   And remember the adage:  You cannot solve in divorce problems that you could not resolve during the marriage.  The way to avoid mediation becoming a very bad couples counseling session and getting inextricably mired in emotional content is to keep bouncing back and forth successive proposals and counterproposals until you reach resolution or compromise.

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