Negotiating Conflict in Divorce cases by Elizabeth Wolt, Esq.

Like it or not, you are a negotiator. Everyone negotiates some issue at least once a day. Negotiation is the means by which we communicate with others to get what we want. The back and forth banter is designed to reach an agreement. Why are some of us so much better at this than others? When you and the other side have a shared interest and others that are opposed, how do you bridge the gap. Unfortunately the world is becoming more and more complex requiring more negotiation than ever. This is most noticeable in the family setting between spouses,, partners and parents and their children. Conflict has become a growth industry, but the skills are not taught. I find that almost everyone wants to participate in the decisions that effect them while most people resent or accept decisions dictated or forced upon them by a third party. Therefore, it goes without saying that it is best to reach decisions that effect you through active negotiation. Mainstream strategies for negotiation often leave people dissatisfied, worn out, or alienated, if not all of the above. So most people find themselves in a dilemma. Believing there are only two ways to negotiate: The first way is the person who wants to avoid confrontation at all costs and he or she makes concessions to appear “nice” in order to reach agreement, this type of negotiator usually leaves the negotiation feeling taken advantage of and resentful. No where is this more clear than in the Family law or dissolution of marriage arena. No one knows you better than your spouse; and therefore they know exactly how to make this type of individual feel  exploited, guilty or other manipulative ways to get what they want. The other type is the person who sees all conflicts as an opportunity to win. Winning is everything for this type individual at any cost. This type of negotiator often exhausts resources-both financial and emotional and often takes such a hard position that negotiation is usually not successful and him or her and this person finds their result being enforced upon them by  a Judge who does who  does not have the luxury of time to get the know the parties or their goals for raising their family post-divorce.

There is a third way to negotiate, a way that respects each side and does not unnecessarily cave in and does not bully. This method was developed at the Harvard negotiation Project and moves forward by each party agreeing to decide issues ion their merits rather than through a back and forth battle of wills. Both sides define their goals and the facilitator looks for and points out mutual gains whenever and wherever possible. The standard here for resolution has nothing to so with the will of either party. Their are no tricks or needs to posture. This method shows you how to obtain what you are entitled to and be civil in the process and protects you from those who would take advantage of your fairness. This method was  employed by United States diplomats when they negotiated arms control talks with the former , by Wall Street Attorneys representing Fortune 500 companies in antitrust cases, but by far the best use of this method, in my opinion, is by couples deciding how to divide their parenting time post-dissolution, and how to divide their marital assets and liabilities.

This method works for one issue or many and applies whether one side is experienced or less, a hard bargainer or a softie; and most importantly, this method works even better if the other side knows about it. If a person going through a negotiation process with someone trained in this method, they walk away with a life skill that will serve them well throughout their lifetime. because like it or not, you are a negotiator. it is a fact of life. You will discuss raises with your boss, the price to pay for your house, where to go for dinner with your date. Again, everyone negotiates something every day. So how does one negotiate using the principled method?

  1. Don’t bargain over positions: Bargaining over positions entails each side taking a position, arguing for it, and then making concessions to reach a compromise. Arguing over positions usually produces unwise agreements for the following reasons: The more a party clarifies and defends his position against attack, the more committed that person is to their position making it almost impossible to change that persons mind or get them to see any outcome except the position they have fought so hard for. In the end, the more attention that is paid to a position, the less attention there is to be devoted to meeting the underlying concerns of the parties and results in agreement that often fail to meet either sides underlying goal. bargaining over positions creates incentives that stall settlement because each party is focused on trying to improve the chance that any settlement reached is favorable to them. This usually play out by each side taking a stubborn view usually fueled by emotion and hurt resulting from the failed relationship and using that anger and resentment to hold onto an extreme position. This often takes place even when the party has been informed by their counsel that the law will not support his or her position. This party then proceeds through the negotiation process by making very small concessions only as necessary to keep the negotiation going. This risks being unable to reach any agreement at all. Negotiating like this results as one side or both believing they are being forced to bend to the rigid will of the other and that their legitimate concerns are going unaddressed. If you want to spend the rest of  you children’s childhood arguing with your former spouse, this is the way to ensure that will be your shared future. Any negotiation primarily concerned with the relationship runs the risk of producing a sloppy agreement.
  2. Change the game: negotiate to produce wise outcomes efficiently and amiably. You must separate the people from the problem. Focus ion interests and not positions. generate a variety of possibilities before deciding what to do. Insist that the result be based on some objective standard. This will require you to put your emotions on a back burner and analyze the problems, plans ways to resolve the problem and discuss both the goal and the resolution. There is no “bottom line” in principles negotiation. For example is a parenting related issue. The goal of each parent, I would hope, would be that their children would grow up to feel loved by both their parents, have a caregiver available for them and to make sure they are educated, fed, housed and receive proper medical and dental care and a good education, for example. These goals, as agreed to by the parties up front,  guide you to brainstorm how to make sure this can occur and come up with plans and discussion decidedly directed to obtaining this mutual goal so everyone wins. Future blogs will expand on these basic points and answer frequently asked questions about this method of negotiation.

 

Be Sociable, Share!

About Beth

Elizabeth Wolt is an AV rated marital and family law attorney. She runs a boutique law firm catering to a select group of clients taking on a low number of cases so she can devote individulaized attention during this difficult transition. Identified as one of the Best and Brightest college Students by USA Today in 1994. Featured in a cover article on May 8, 1997 of the Wall Street Journal. Graduated Magna Cum Laude from Undergraduate School- University of South Florida with a BA in Psychology 1994. Graduated Cum Laude from University of Miami School of Law- JD.1997. Named to the list of "Top Lawyers in Florida" by the Legal Network 2013, 2014, & 2015. AV rated by Martindale Hubbel in both ethics and ability. Rated "Excellent" by AVVO legal.com Featured in the American Lawyer December 2014
This entry was posted in alimony, child custody, child support, Children & Divorce, dissolution of marriage, Divorce, Elizabeth Wolt, Elizabeth Wolt (239)353-9988, equitable distribution, Fort Myers best Family law attorney, Fort Myers Divorce Attorney, Fort Myers Divorce Lawyer and tagged , , , . Bookmark the permalink.

Leave a Reply

Your email address will not be published. Required fields are marked *

*