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Negotiation Techniques in Divorce: Arriving at “Yes”

July 19, 2022

Negotiations: We all have them nearly every day.

We negotiate bedtime with a restless child.

We negotiate which movie to see with friends or where to go for dinner with our partner.

Depending on your job, you might even negotiate as a part of your professional life.

We all do it at one point or another.

If you are getting divorced, you're likely in the middle of one of the biggest negotiations of your life.

But how many of us really know how negotiating works?

Did you realize there are specific styles and tactics that can lead to better results?

If you find yourself curious about the nuts and bolts of negotiating and how you might use negotiation techniques to reach a settlement agreement, then this article is for you.

Read: Taking a Team Approach to Divorce

Two Styles

In his book Bargaining for Advantage, Richard Shell defines the two basic styles of negotiating: competitive and cooperative.

If you are like most people, you might be surprised to see the word "cooperative" appear in the same breath as "negotiation."

Most people think of negotiation as a competition.

The formal name of this type of negotiation is Positional Bargaining.

In Positional Bargaining, the parties come to the table with a set of demands, and the negotiation process is a zero-sum game.

You'd approach this type of negotiation with the mentality that each time you make a concession, you lose. And each time the other side makes a concession, you win.

Positional Bargaining is adversarial, and it sets the parties up to play hardball.

Each year, hundreds of couples attend divorce mediation and engage in Positional Bargaining.

Most eventually reach an agreement, so this method clearly works. But how well?

There is another way.

Interest-Based Negotiation is a method that falls under the cooperative style of negotiating.

In this method, a problem-solving mindset is paramount.

Each party comes to the table with a set of interests that matter to them, and the negotiation is geared toward using the available resources to provide for each party's interests.

Interest-Based Negotiation sets the parties up to work together toward a common goal rather than score individual points.

Why Bother?

Right now, you may be wondering why you should bother with choosing a specific negotiation style.

After all, the outcome is the same, right? Either way, you get divorced.

But will you get a good outcome? How painful will the process be? Will you walk away feeling accomplished or feeling angry?

Let's look at an example.

Using Positional Bargaining, you might walk into a mediation session saying, "I'm keeping the house no matter what."

To keep the house, you may need to concede part of your 401(k). You've gained the house and lost the 401(k) money, plain and simple.

In Interest-Based Negotiation, you might walk into a mediation session saying, "It's important to me to stay in the house, because I don't want the kids to have to change schools before they graduate in three years."

It's the "why" that is a key differentiator here.

You haven't just stated what you want — you're letting the other party know what's important to you and why.

Now you've set your negotiating partner (spouse) up to help you figure out how to stay in the house.

Instead of feeling like they want to keep you from "winning," now they feel like they're problem-solving alongside you.

Maybe the solution does mean putting part of your 401(k) in their column, but it's no longer a loss — it's a tradeoff you made to serve an important interest.

Later in the day, the topic of custody arrangement arises.

If you've been engaged in an adversarial process all day and your soon-to-be-ex-spouse asks for both Thanksgiving and Christmas, that might just be the last straw — and lead to a failed mediation.

What if instead, you've been working as a team all day to solve problems?

What if your soon-to-be-ex-spouse says to you, "I know it's asking a lot, but it's really important to me that the kids and I have Thanksgiving with my parents and Christmas with their cousins. At least until they're off to college."

A statement like that might put you in a creative frame of mind, allowing you to respond by saying that as long as you get to have them at Easter and over Spring Break, you can find other things to do on those winter holidays.

See the difference?

Curious bout dividing home equity? Check out the video below.

How to Prepare

So, how can you prepare to engage in an Interest-Based Negotiation? Start with the end in mind.

What do you want your settlement to look like? And why?

"Why" is the most important question you need to answer. Without the why, you can't engage in Interest-Based Negotiation at all.

Asking "why" can also help you get to the root of what's really driving your demands. Is it possible that you are being unreasonable? Can you justify the things you are asking for?

If you can't justify them to yourself, you'll never justify them to your spouse or their attorney.

It's also important to know what you're willing to concede to get what you need.

Is giving up a chunk of your 401(k) a non-starter? If so, why? And what are you willing to give instead? Saying "no" without offering an alternative won't get you the results you want.

Start thinking now about potential tradeoffs so you aren't taken by surprise.

It's also important to know which assets in the estate serve your interests best.

If you need ready cash, ask for the bank account, not the 401(k).

If you can't afford to maintain the house, you shouldn't agree to keep it.

A Certified Divorce Financial AnalystTM Professional can help you identify the "must keep," "won't keep," and "give away" assets in your estate.

They can also help you sort out your "whys," since you will have discussed your post-divorce goals together.

Read: Should I Keep the House?: Real Property in Divorce

Outcomes Matter

Let's backtrack to a question I posed earlier: "Why bother?"

If your case has been dragging on and you've lost any goodwill you started with, you may be ready to cross your arms, sit back, and refuse to play ball.

This might feel good in the moment…but the price you pay could be high.

First, fighting costs money.

You'll both be paying attorneys and a mediator to help you fight this battle. How does prolonging your case serve your interest?

Second, thinking creatively and working collaboratively can lead to outcomes that serve both your interests better.

Two heads are better than one, as they say, and you're much more likely to reach an agreement that works well if both of you are working toward a common goal.

Third, by working together, you can preserve any goodwill that may remain — and you might even build goodwill for the future.

If you have children together, you're stuck with each other.

And refusing to behave badly during your settlement negation means you won't have to deal with additional guilty feelings or regrets later.

You may be dreading the idea of walking into a negotiation; the thought alone may fill you with anxiety and angst.

But remember, it doesn't have to be that way.

You can negotiate, advocate for yourself, drive a competitive bargain, and still feel good about yourself (and your ex).

It just takes a shift of attitude and a little legwork.

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