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Hi, everyone, and thank you so much for tuning in to the Divorce Field Guide. My name is Ani Mason, and I’m a divorce lawyer and mediator, and I’m also the creator of this podcast.
Today, we are in Episode 2, and we’re going to talk a bit about negotiation. I wanted to start out the podcast by asking and then answering the question of: What is negotiation, and why you should care about it, quite frankly? If you’re not already interested in negotiation, why, just by virtue of going through a divorce, should you become interested in it?
WHAT IS NEGOTIATION? (AND WHY SHOULD YOU CARE?)
Let’s start with defining what “negotiation” is. I think of negotiation… And, actually, let me give a little caveat at the outset that I’m not going to give you a definition that would be a global definition of negotiation, that would apply to negotiations between countries. I’m giving you one in the specific context of really thinking about divorce, so bear with me.
I think of negotiation as a process by which two people who are in some kind of conflict, whose interests are in conflict in one or multiple ways, come to a resolution of that conflict that is either, you could say, satisfactory to them, or maybe satisfactory is too strong a word, but it’s acceptable to them. So, in the context of divorce, it’s you and your spouse coming to a resolution of the issues that you are in conflict around in order to complete your divorce process.
I think that when you are divorcing in a mediation process or when you are divorcing in a process like collaborative law, it can be more obvious to you that you are in a negotiation. We will – actually, in the next episode – talk more about the process of mediation and the process of collaborative law, but I think it’s more explicit in those processes that both spouses are committed to reaching an agreement, to reaching a settlement, and so the idea that you are in a negotiation that’s meant to conclude in some kind of resolution makes sense – I think it’s more intuitive.
In contrast, when you are in a divorce proceeding in court, what I would refer to as a litigated divorce, it may not be obvious to you that you are in a negotiation process because I think a very common experience of litigation is, “Well, actually, no, we’re not trying to agree. We are battling with each other in court, and it will be up to the judge to make a decision. So, we’re actually not negotiating at all. The sides aren’t even speaking to one another.”
What I want to introduce there is a reminder. The vast, vast majority of litigated divorce will result in a settlement between you and your spouse. They will end up in a mutual agreement. So, even though when you are going through the process of a litigation, it may not seem obvious to you, at all, that you’re negotiating a resolution, you are in a negotiation. You may be in what you ultimately determine is an ineffective negotiation process, but you are in a negotiation process.
I think I’ve belabored that point enough, but, bottom line, if you are in a divorce, you are in a negotiation process. And not only that, but you’re in a negotiating concerning some of the topics that are the most near and dear to your heart. If you are parents, you are negotiating topics around your kids and, whether you’re parents or not, you are negotiating around your finances.
These are really, really critical subjects, very critical subject matter, to be negotiating, and how well you manage yourself and you navigate the negotiation process that is your divorce will directly impact the quality of the outcome that you are able to reach in your divorce process. So, that is (1) what I think a negotiation is and (2) why I think, if you’re going through a divorce, negotiation should be something that you definitely pay some attention to, and learn a bit about, and give some thought to how to prepare for.
NEGOTIATION ROADMAP
Let me just give you a very basic overview of what a negotiation process looks like. This is not specific to divorce, but it holds true in divorce.
Identify the Issues
At the outset of a negotiation, you have to start by figuring out what are the issues that you are negotiating about. Some of those issues will be obvious to you. If you are divorcing, and you have a young child in common, it will be obvious to you that you need to figure out some kind of parenting schedule. Perhaps you will already be thinking that you will need to come up with some way to make decisions for your child, major decisions in the future – or that latter point might not be so obvious to you, which leads to the second thing I wanted to say about identifying issues at the outset of a negotiation in a divorce.
Some of the issues will be obvious to you, and some of the issues that you have to cover in a divorce may not be so obvious to you, and that’s normal. There are some very specialized issues that a court looks to have spouses speak to in a divorce process. So, you will work together with your spouse and together with your attorney or your mediator to fully identify the issues that you will need to cover. That’s really an important component at the outset of a divorce negotiation, figuring out what it is that you’re negotiating.
Gather & Share Information
Once you’ve got clarity around that, you move in to the next phase of a negotiation process, which is gathering and sharing with each other the information that you need to be able to have informed and productive discussions about the issues that you need to negotiate. It’s very common that that information is largely financial, but it may not be only financial. There is a long list of items of information that are typical to exchange in a divorce, and we won’t talk about that in this episode, but we will talk about it in a future episode. Suffice to say, that there’s an important part of the negotiation process in divorce that involves gathering and sharing information with your spouse.
Similar to identifying the issues you need to negotiate, you won’t have to do that alone. Your mediator or your attorney will be able to help you figure out what information you need, how to get the information you need, and they’ll be able to help you to structure the sharing of that information. So don’t worry, if that sounds overwhelming, you won’t be expected to do it by yourself.
Discussing the Issues
I was going to say once you have exchanged information, but quite frankly, before your sharing of information is complete, you will start discussing and working through the various issues that you need to resolve as part of your divorce negotiation process. That’s, in some ways, the meat of your negotiation. That’s where you talk about what is important to you, what your goals are, what your concerns are, what’s acceptable to you.
I do want to say that depending on what kind of divorce process you’re in, this may look more like a discussion if you’re in, say, mediation or you’re in collaborative law as a process, or it may look more like an exchange of more formal proposal/counter proposal/counter-counter proposal between your attorneys. There’s not a right or a wrong there.
I want to flag for you that I’m talking in terms of a discussion because, as I mentioned on the first episode, the focus of my own practice is really mediation and collaborative law. But, having worked in litigation and then more settlement negotiation processes, I would say that, there, you might not expect an in-person discussion of the issues. Your “discussion” of the issues might be more through formal proposals, back and forth, between your attorney and your spouse’s attorney, on behalf of you and your spouse.
Brainstorming
The second phase of discussion is the brainstorming and generation of options for resolution. That’s where a lot of people will start out. It’s common to start there in a negotiation process, in a divorce process to start with “Here’s what I think we need to do: [insert whatever the option is that you’re offering for resolution].”
And, that may work. But, if it doesn’t, if it’s not immediately accepted, it may help you to come back more to the basics of negotiation and think about, “Okay, maybe I will start by figuring out what the issues are we need to resolve. And then I will figure out what information needs to be shared and gathered between us in order to have informed discussions on those issues. Then, we’re going to start having the discussion by both sharing what’s important to us. What are our goals? What are our fears/concerns? What’s acceptable? What’s not? What’s practically workable? What’s not? And, from there, with that real strong foundation of understanding, we can start to generate options for resolution that will make sense for both of us.”
Evaluation
Once you have done some work in generating options and brainstorming, the next step in a negotiation process is to evaluate those options. That basically means looking at, from your perspective, what of these options is ideal, among those that are also acceptable to your spouse? Because, in a negotiation, if an option does not work for the other party, for your spouse, that’s not going to be something that they will accept. So, among the options that are acceptable to your spouse, you want to evaluate, what is best for you, what works best for you.
You also want to evaluate, as part of that process, where are the best areas for you to compromise, because you’re going to have to compromise as part of any negotiation process. That’s a given. So you want to be strategic and thoughtful about where are, what are the things that are really important to your spouse? And what among those are areas where you could compromise?
Committing to Resolution
When you have come up with a resolution that is your ideal and your spouse’s ideal resolution, you’re going to commit to that in a more formal way. That can take many forms in any general negotiation, but in a divorce negotiation, we draft a legal contract that formalizes the agreements that you’ve made in your negotiation process.
So, that is a very high level overview of what you can expect from a negotiation process and, I would say, a roadmap of sorts of what to expect from a divorce negotiation process.
AMATEUR NEGOTIATORS WELCOME!
Now, what’s my point with giving you this information? Because, I want to say at the outset that I don’t expect to listen to this podcast and come away feeling like an expert negotiator who’s able to quarterback the negotiation of your own divorce. Absolutely not. Very few people would be able to do that.
What I want to convey is more that your divorce is a negotiation. Negotiation is a process or a practice that has a structure to it; that has its own, as with anything in this world, its own attendant field of study devoted to it. And, growing out of that field of study, it has lessons, and tips, and takeaways that you can learn, you can study, to become better at negotiation, which, in light of what I said earlier in the podcast, given the importance of the topics that you are negotiating in a divorce, I think, really serves you well. I think it pays back major dividends to devote a little bit of time to learning about and improving your skills at negotiation at the outset of your divorce process.
In saying that, I want to recognize that I know, I know from personal experience, I really get, that negotiation is not naturally fun or naturally easy for many people. If that includes you, cool. Don’t worry about it.
I know that it can be especially daunting to take on a negotiation process if negotiation is not something you do regularly as part of your job and, especially when, even if it’s something you do every day for your job, or just in your regular life, it’s especially stressful when a negotiation is part of your divorce process, which comes filled with all these other components, emotional and psychological components, relational components. It’s not an easy context within which to negotiate.
But, fear not. The first thing I want to say to you is that you are more than expert in negotiation than you think you are. Why? Because you have more experience than anyone in this world in negotiating with your spouse. You have negotiated tons of issues with your spouse. No doubt, the two of you have come resolution on many, many issues, and you will be able to do that here. Even if you feel that you won’t, statistically speaking, you are overwhelmingly likely to be able to negotiate a resolution to your divorce with your spouse.
The other thing that I want to say is that I promise that you can get better at negotiating if you feel that you’re not great at it. And, I speak from personal experience there. I will never forget doing my first negotiation – it was a mock negotiation, nothing was on the line – and yet, this was in law school, I was terrible at it. Really. It was not something that came naturally to me. But, through doing trainings in negotiation and reading about negotiation – I mean, just even reading a few key books, which I’m going to mention to you in a second – I completely shifted the way in which I negotiated, and my comfort level in negotiation, and just my knowledge of what was happening in the negotiation room. That made a world of difference, and it can for you, too.
You don’t have to go to law school and you don’t have to get a Masters in conflict resolution in order to improve your skills at negotiation. A little goes a long way in this field. Similar to what I’ve set a couple of times already in this episode, you don’t have to be the lead negotiator in your divorce. That’s why people hire a mediator or they hire a divorce attorney to help them negotiate effectively in their divorce.
RESOURCES ON NEGOTIATION
With that said, I want to mention a couple of resources to you, and then I want to give you a little mini-assignment, if you’re open to it. There are some amazing books out there on negotiation, and probably the most famous book is “Getting to Yes,” which I read many years ago and remember liking at the time.
What I’ve heard from many people is that “Getting Past No,” which is sort of a – I don’t know if it’s right to call it a sequel, but it’s written by one of the two authors of “Getting to Yes” – has been a more helpful book for many people. I feel like I’ve heard that on a Tim Ferriss podcast and one other place that I can’t remember. So, I want to recommend those two books to you on negotiation.
Then, I want to recommend two more that, for me, personally, have been amazing books and have really impacted the way that I think about negotiating and the way I negotiate. One is “Difficult Conversations.” That book also comes out of, as the first two did, the Harvard Negotiation Project, which is amazing and, really, they are true leaders in the field of studying and learning about negotiation. That book’s incredible. I could not recommend it more strongly.
The other book that I want – I saved the best for last here – that personally changed my life as a negotiator and the way that I think about my ability to improve as a negotiator is a book called “Bargaining for Advantage.” It has a lot of awesome stuff in it. One of the things it has in the end, in the index, is a style assessment tool. It helps you assess your style as a negotiator. It then has amazing content targeted at if you are strong in the accommodating style or you’re weak in the accommodating style, if you’re strong in competition or you’re weak in competition, strong in avoidance, weak in avoidance. I’m, sort of, rattling off some of the different styles of negotiators.
I would just encourage you to get that book and take that style assessment tool, assess yourself, and then read the sections of the book that are targeted at people with your particular negotiation style. For me, that was a game changer as was, really, just the introduction of that book and the way he sets up the reality that there are no born negotiators. No born negotiators. So, if you identify as someone to whom negotiation doesn’t come easily, don’t worry. It doesn’t matter. You can learn it just like every other awesome negotiator, who only got to be awesome because they studied and practiced, and practiced, and practiced.
If there are other books, by the way, that you have read on negotiation that you’ve found really helpful, I would love to know about them because I love to read and learn about negotiation, and I’m sure it would be helpful to other listeners.
My assignment to you is to pick one of those four books, and read it, and see how it helps you to shape your thinking about your own divorce process.
NEXT UP
So, that is it for our episode today. Up next, we’re going to be talking about the different divorce processes that you can choose from when you are at the outset of a divorce. And, in essence, they are different ways of negotiating. They set up different structures for your negotiation in your divorce. So, we are going to talk about mediation, collaborative law, settlement negotiation, litigation, arbitration, and the proverbial kitchen table or DIY divorce.
I’m looking forward to speaking with you then. Until then, thank you so much again for tuning in, and I’ll talk to you next time.