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Negotiating Your Settlement

The concept of interest-based negotiations isn’t new to ADR professionals, but it’s probably a foreign idea to your clients.  Helping clients understand the difference between positions and interests will help everyone involved in the session get to a workable settlement much more quickly. That’s the first part of Chapter 10 of Making Divorce Work.  The second part of Chapter 10 is designed to help clients learn  to talk productively during their private conversations.  Feel free to share this with them:

Talking with Your Spouse About a Settlement

Even if you’re working with a professional to resolve your case, as much as you may hope that your lawyer or mediator will do all of this work for you, you and your spouse are probably going to have lots of discussions outside of court or mediation sessions— before, during, and after your divorce—and keeping the idea of positions vs. interests in mind will help keep your discussions productive.

It’s not as hard as you think to focus on interests and not just positions. What may be hard, however, is listening to your spouse when he is saying something you don’t want to hear. But you’re going to commit to this process and you’re going to hear your spouse out—even if you don’t get the same in return.

Nobody will ever change his or her mind or position without first feeling that he or she has been heard. So that is where you are going to start. You are going to reframe and rephrase the position. Start with “let me make sure I understand” and then restate what your spouse has said. ….. Next, you’ll ask for an explanation: “Help me to understand why that is important to you” ………. Say it in a neutral, curious tone. This is about finding out why your spouse wants what she wants and then figuring out a way to give it to her that also feels good to you. And if it’s something that you can’t agree to, or figure out how to agree to, at least your spouse knows you listened and considered her wishes. That will go a long way in helping your spouse to compromise, too, when it’s about something that’s important to you.

Be very clear that you’re willing to consider your spouse’s position.. ………

If you’re not sure you’ll agree to the request, you can say, “I am not sure I’ll be able to agree to that exact request, but would you be willing to consider a different way to accomplish that goal?” For example, “I’d love to be able to say that I’d waive spousal support. I know how much it irks you to have to pay me. I’d be willing to consider a waiver or shorter time period if we can figure out a way to help me be self-supporting within twelve months. Would you be willing to consider something like that?” …………..

Sweat the Small Stuff
Start with the small stuff and work your way up. Don’t try to tackle the biggest and hardest problem first. Save that for last. Start with easy things, like your checking accounts and frequent flier miles. Don’t start with the house, Christmas parenting time, or valuing your small business. When you start with the big issues, you’ll rarely reach an agreement. If you can’t solve the small stuff, you won’t be able to solve the big stuff. Keep your initial goals small and easy to accomplish.

Working your way up also helps to build trust and confidence in the process. And it lets you see the progress you’ve made. Even if you can’t resolve everything, you can at least narrow down what you still need to tackle. Once you and your spouse see that it’s working, your agreement will start to gain momentum. You’ll be excited by the prospect that you might actually be able to settle this after all. …………….

If Things Aren’t Going as Hoped
If the negotiations aren’t going as smoothly as you’d hoped, ask yourself:

  • Are my requests and expectations reasonable given our situation and the law?

  • If I were my spouse, would I accept the proposals I’m making?
  • Are my offers fair? Would other people perceive them as fair?
  • Are my proposals based on facts that I can prove, like the size of our bank account? If so, does my spouse have the information to know that what I’m asking for is accurate?
  • Is timing an issue? Am I pushing too hard, too fast, or going more quickly than my spouse can tolerate?
  • Is the settlement I’m requesting in line with other court decisions or settlements?
  • Do I have the power to force this issue? How likely am I to win if I do force it?
  • What are the benefits to me of pursuing my present course? Are there any risks?

Like so many valuable life lessons, these skills are simple, but not easy.  But the effort you put forth in learning how to interact with others this way—particularly your co-parent or former spouse—will help you move through difficult relationships in a more peaceful way.


Diana Mercer

Diana Mercer, Esq. is an Attorney-Mediator and the founder of Peace Talks Mediation Services in Los Angeles, California ( ). A veteran litigator, she now devotes her practice solely to mediation. Outgoing and down-to-earth, she makes clients and attorneys feel at ease in solving family law disputes, divorces, custody,… MORE >

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