Negotiation in the Collaborative Process
We all negotiate many things every day. We may negotiate with a co-worker over where to go to lunch, or we may negotiate the terms of an employment agreement, or we may negotiate with one of our children how long they can stay at a friend’s house. Negotiating is the primary way of getting a resolution when we don’t immediately agree with someone else about something. There are more effective and less effective methods of negotiation and there are more effective and less effective negotiators. In a collaborative divorce process, collaborative attorneys know and practice effective negotiation methods so that (1) the couple can avoid having to go to court to get resolution and (2) so that the couple can reach an optimal arrangement for their circumstances.
Haggling
Unfortunately, in separation and divorce matters, much of what passes for negotiation is really haggling, an ineffective negotiation method for reaching optimal solutions in family matters. Haggling may work quite will in many circumstances, but it typically involves tactics that can be damaging or suboptimal in a family context. Haggling works when buying a car. As you can see from the following example, however, this type of negotiating may not be ideal for two people negotiating the dissolution of a marriage.
Haggling-style negotiations inevitably start with a mild deception: “I’d like to buy this car, but I only have $15,000 to spend.” In reality the buyer is willing to spend more than $15,000, the other side suspects this, but when you’re haggling, it doesn’t pay to let the other person know more precisely what your willing to pay. So information is withheld and the other person is misled.
The dealer immediately responds by taking a counter-position: “You must be joking. This car sells for $25,000.” The deceptions continue. The dealer is well aware he sold a similar car for $20,000 just last week, so his statement is misleading. In addition, the battle lines have been drawn. The dealer’s effort now is to draw the buyer off of her position that the car is worth $15,000 and move her to his position that the car is worth $25,000. The contest of wills has begun. Psychological pressure is brought to bear by suggesting that the $15,000 offer is ridiculous. The buyer defends her position and attacks the dealer’s position: “I might consider paying more than $15,000 if this car was a popular model and it was a better color, but I’m just looking for inexpensive transportation. This is no luxury car!”
The dealer responds in kind. “I’m not sure you’re aware that this car has a six-cylinder engine with top of the line trim, including a 100-watt stereo system with six speakers.” Then the dance to the middle begins. The buyer indicates that since the car has a large engine and a premium trim package, she might be willing to go as high as $17,500. The dealer is the more experienced haggler, however, so he opens his bag of tricks. The first trick is to pretend he really doesn’t have authority to make a deal. “Well, there’s no way I can sell this car for only $17,500, but I’ll go talk to my manager to see what she’s willing to do.” Then, while the dealer is in the back somewhere watching ESPN, the buyer is left in an uncomfortable chair in the showroom where the temperature is intentionally set 5 degrees below comfort level.
The tricks continue when the dealer comes back. “My manager said that if I can get the car sold today, I can discount it down to $23,000 because it will help our monthly sales numbers.” Psychological pressure to act hastily is added to the mix. The buyer is wearing down. She’s beginning to doubt her assessment of the value of the car. The dealer chooses this moment to introduce the good cop/bad cop routine. A woman appears on a raised platform near the middle of the showroom and scowls at the buyer. The dealer says that the woman is his manager. In a lowered voice he says: “Look I’d love to sell this car at below dealer invoice to you, but my manager would go ballistic. The $23,000 offer is really a good deal.” And so it goes.
Haggling in this way over family matters, over such things as how many nights of visitation each parent will have with the children, or who will have various items of furniture, etc. can be very destructive to a working relationship and will likely lead to a suboptimal agreement, assuming an agreement can even be reached in this way. Unfortunately, traditional divorce lawyers often use a competitive form of haggling in negotiating marital settlement agreements.
Introducing Objective Criteria
A useful, though somewhat limited, improvement to haggling in negotiating separation and divorce matters is to insist that any settlement must be based strictly on what the domestic court would do if the matter were presented to a judge. Clients are instructed by their divorce lawyers, for example, that they should agree to a marital settlement agreement only if alimony is provided in the amount the lawyer believes would be awarded in court. This introduces an objective set of criteria into the haggling process and may help reduce the efforts at gamesmanship and limit the impact of psychological pressure.
On the other hand, settling issues strictly on the basis of what a court would do severely limits the potential for solutions that are unique to the parties involved. Court resolutions are not terribly creative and are unlikely to be optimal for the specific people involved.
Perhaps more problematic is that lawyers typically disagree on what the court outcome will be. A judge in a family case has incredible discretion in most cases to act in any way the judge sees fit. Predicting what judge will be deciding the case, or, if that is known, how the judge will rule on any particular day given any particular circumstances, is a very hit-or-miss proposition. When the divorce lawyers disagree about what the court would do, which is true in the vast majority of cases, then the objective criteria is not very useful in getting a resolution. Most problematic is that if an agreement is reached strictly based on what a judge would do, then only divorce lawyers can determine what the agreement should be. Unless the client has a law degree and experience in family court, the client is not equipped to have much say in the settlement. The client can quickly become a bystander to his or her own divorce. Decisions that may have lifelong impact can only be made by someone else.
Interest-Based Negotiations
There is a better way to reach resolution around family matters. It’s called interest-based negotiation. It’s a model for negotiation developed by the Harvard Negotiation Project over three decades ago and was first introduced in a book called Getting to Yes—Negotiating Agreements Without Giving In, by Roger Fisher and William Ury. The book has become a classic text in negotiation, and was written specifically with this question in mind: “What is the best advice one could give a husband and wife getting divorced who want to know how to reach a fair and mutually satisfactory agreement without ending up in a bitter fight?” The answer, among other things, was to negotiate interests.
Negotiating interests (or needs) means avoiding taking positions in a negotiation. When people disagree, they typically take positions. For example, in discussing parenting arrangements after separation, one spouse might say, “I think the children should stay with me during the week.” The other spouse may take a contrary position, “Well, I think the children should stay with me during the week.” They are on their way to “haggling” over which of these positions should prevail. Effective negotiators, on the other hand, focus on the interests or needs underlying the positions. What interest am I trying to protect by taking this position and what interest is the other person trying to protect by taking their position? In the example of the parents who each want the children during the week, their interests could be any number of things. Perhaps one of them is worried because he wants to maintain a close connection with the children. Perhaps the other is concerned because she wants to make sure homework gets done, the children get to bed on time, and the children succeed in school.
The importance of shifting to interests lies in the fact that there will inevitably be multiple options for getting one’s interests or needs met. A “position” is merely one option. When people start talking about underlying interests and needs, then it is possible to begin to generate multiple options for protecting those interests or for getting their needs met. The negotiation becomes a joint problem-solving exercise as the parties seek to find options and strategies that will work for both of them. Thus, in the example of the couple who each want the children during the week, when the conversation turns to how the one spouse maintains a close relationship with children, and how the other spouse can help ensure success at school, many potential options and strategies can be developed for protecting these interests. It’s a matter of finding the strategy that will work for both parties.
Another important aspect of interest-based negotiation is showing respect for the other person’s genuine interests, even as there is disagreement over how to protect those interests. Negotiators involved in haggling will often criticize, belittle, and threaten the other party in an effort to win the “contest of wills.” They will suggest that the other person’s interests are not worthy of consideration. Good negotiators, on the other hand, never forget that they are dealing with human beings who have emotions, strongly held values, and different viewpoints. Negotiators are more effective when they treat the other person as a fellow human being, even where there is deep disagreement.
In the divorce context, negotiating over interests, rather than positions, makes agreement more likely and allows for the development of an ongoing working relationship throughout the divorce process, and after the divorce process where necessary.
