Successful Divorce Negotiation

In my work as a divorce mediator, I often find myself needing to coach clients on how to negotiate.  So when they find themselves in negotiations that are emotionally charged, they often make many negotiation mistakes.   But negotiation is not complicated and many can learn quickly.  So, as I mediate, I often focus on the negotiation process itself.

The Four Steps to Successful Negotiations

1.  Attack problems, not people.

2.  Define the problem by identifying interests.

3.  Identify all the options.

4.  Find mutually satisfying solutions to problems.

The Paradox of Divorce Negotiations

Negotiating well with your spouse requires that you behave in a way that contradicts how you feel.  You feel angry, distrustful, resentful, and bitter.  These feelings prompt personal attacks, blaming, ridiculing, and recriminating — behavior that drives your spouse away from the negotiation and reduces your chance for a satisfactory settlement. So the challenge is to create a setting that acknowledges how you both feel but also makes it possible for you to engage in creative problem solving.

There is an important difference between agreement and  contract.  Negotiating a contract is not enough.  We know this because half of all couples with divorce contracts are back in court within two years.  If you have to go to court to enforce your contract, it means you did not negotiate successfully.  What you seek is agreement, and it is the quality of the agreement that will measure whether you succeeded.

Concentrating on agreement helps you distinguish between behavior that promotes it and behavior that does not.    Many popular notions about hard-nosed aggressive bargaining are based on the idea of beating an opponent into submission.  But submission is not your objective.  Agreement means that you and the other person share the same viewpoint on what is to be done, that you are both committed to that viewpoint, and, for our purposes, that you both regard it as fair.  You cannot negotiate your spouse into submission and expect the agreement to survive.

But how can you cooperate with this person toward whom you don’t feel cooperative?  And how do you trust this person you no longer regard as trustworthy?

The answer is to concentrate on behavior rather than feelings or attitudes.  You have little control over what you feel.  However, you are capable of controlling your behavior in the right setting.  So our task is to identify which behaviors help and which hurt, and then to create the setting that fosters useful negotiations.

Sam Margulies, Ph.D., J.D., is one of the most experienced divorce mediators in the United States. Since 1980, he has mediated approximately four thousand divorces including many complex multi-million dollar matters.  Located in North Carolina but with clients all over the country, call or e-mail Sam for a free consultation to discuss your divorce.  336-669-3141 or sam@sammargulies.com

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