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Emotional Issues and Negotiating Skills |
By Carol A.
Butler (Ph.D.) and Dolores D. Walker (MSW, JD)
Marriage was an
organizing factor in your lives. You and your spouse together made many
decisions in particular ways because you were married and shared certain
values and expectations. Now those expectations have been turned upside
down. You will be negotiating a separation agreement at an emotionally
difficult point in your life, and you will be required to make decisions
without your accustomed underlying rationale. This can be frustrating and
confusing.
You or your spouse may
find that feelings of anxiety over the potential loss of financial
security, extended family, home, and friends have a quality more like
childhood panic than adult concern, because these losses represent a
temporary loss of the "self" with which you have become comfortable. There
may be feelings of betrayal, rage, or helplessness. If the two of you
become involved in an adversarial process, these feelings may be
intensified because you'll be dependent on your lawyers' strategizing.
A mediator understands
this state of mind and will keep the negotiations non-confrontational and
structured. With your mediator's assistance, you will both be able to
speak for yourselves and plan your individual futures.
The negotiation
techniques we discuss will be helpful with this process. We will answer
questions about how to overcome emotions that interfere with negotiations:
how to make trade-offs so that you get what you really want; how to get a
reluctant spouse to mediate; how to overcome impasses; and how to develop
better ways to communicate so that you can have future discussions
concerning such issues as parenting arrangements with less conflict.
Question 1
"How is negotiating my
divorce agreement different from other types of negotiations?"
Because you are negotiating something very complex and personal, the
stakes are higher than if you were negotiating a business matter. Your
relationship has probably been quite emotional, both affectionate and
angry, and facing separation may elicit some painful and perhaps
unanticipated responses from both of you. If you have children, you cannot
walk away and never see each other again. You will be negotiating the
terms of an ongoing relationship that will affect both you and your
children for many years to come. Under these circumstances a win/lose
approach cannot work.
Question 2
"How do I get what I
want? Are there rules for negotiating?"
Negotiation is about problem solving. There are no absolute rules, but
there are techniques to be used thoughtfully.
You are more familiar
with the process of resolving conflicts through negotiation and compromise
than you may think. You have negotiated with friends and family about all
sorts of choices affecting more than one person. Think about what you have
learned about yourself as a negotiator in your prior experiences resolving
such common conflicts as scheduling, meals, curfews, hairstyles, holidays.
These are some of the
basic ideas to keep in mind when you negotiate.
Before mediation
sessions begin:
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Do your homework in
advance so that you are prepared with information and questions about
the issues that concern you.
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Think about what's
really important to you, and think about trade-offs. Don't get greedy,
but don't fail to recognize if you're in a poor bargaining position on
some issues. Keep in mind that it is unlikely you will get everything
you want, whether you use mediation or litigation. If you remember this,
you'll have a much easier time considering alternative proposals.
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Prioritize what's
important to you. Look at the whole picture. Don't limit yourself to one
issue. Be aware of what you value most.
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Assess and strategize,
anticipating what your spouse may want or must have.
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Plan some concession
points. You may be willing to give up money for some other benefit, or
some other benefit for money.
During mediation
sessions:
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Be patient.
Negotiation is a process that takes time.
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Focus on the future.
Don't dwell on past issues that won't continue once you're divorced.
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Begin with a
reasonable position. If you're unreasonable at outset, you risk an
impasse.
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Stay with the
agenda. Don't get stuck on irrelevant issues.
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Don't formulate a
reply without listening carefully. Take notes. Be certain you understand
what is said. Clarify by asking questions of both the mediator and your
spouse.
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Don't be
confrontational, and avoid verbal put-downs. Focus on the problem
instead of on who's to blame.
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Do not escalate. If
your spouse attacks you verbally, don't take the bait. Stay focused on
your future goals and on the problems that stand in the way.
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Avoid treating
everything as equally important. Probably, the antique clock and the
pension plan are not of equal value to you.
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Generate solutions.
When you say no, try to suggest another solution. You don't have to
agree to anything that you think is unfair, but you should consider
every proposal seriously -- and seriously consider how it can be
modified. Is there something else that might make the proposal more
appealing to you?
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Review any documents
of information provided during mediation. Be certain they are clear and
complete.
Remember, mediation goes
through stages. Often when your easier issues are settled and the end is
in sight, there will be more motivation to compromise. As mediation
sessions end, continue your homework. Review the proposed agreement,
making sure that you have read it carefully and that you understand it.
Be certain that your
final agreement is clear and enforceable. An agreement to negotiate about
an issue at a future date is not enforceable unless there are clear
guidelines about who will make the final decision and what criteria will
be used.
Question 3
"How can I negotiate
when I don't want to compromise?"
We can understand that winning it all -- particularly if you feel you are
in the right -- is very satisfying. Winning feels good.
The problem is,
decisions made by you and your spouse in mediation or by a judge seldom
give everything to one person and nothing to the other. So, even if you're
in the right, if you are unwilling to compromise, you run the risk of
losing what is most important to you, and probably at great cost in terms
of time, money, and emotion.
Instead of worrying
about compromises, think about options. How many different ways can you
have it your way? What don't you really want or need that you can consider
trading for what you really must have? And most important, think about
what you really want.
Dolores worked with one
couple in mediation where the father insisted on being the "school-night
parent" (the one with whom the child spent school nights) and was prepared
to put up quite a fight to get that access. But when Dolores asked exactly
what hours he wanted to spend with his daughter, it turned out he had only
two weeknights available, and one of those evenings he was only available
after 7 p.m. Once the father explored the options with Dolores, he decided
it was more important to have more quality time than busy evenings with
his daughter, and he agreed to lengthy weekend visits instead.
Question 4
"If my spouse and I
are at an impasse on a particular issue, how will mediation help us
resolve it?"
We need to look closely at the reasons you can't
agree. Are there emotional issues? Is there a fear of committing to a
different way of doing things? Are you concerned that you may waive some
legal rights? Or do you lack sufficient information? People often have a
period of extreme emotional upset when a marriage is ending. Severe
anxiety and depression are not abnormal at this time. If you are at a
stalemate because of an emotional reaction, a few sessions with a
therapist may help you to clarify and moderate your feelings so that you
can think more objectively.
Are you afraid to
commit to a change that might not work out? Are you afraid to formalize
changes in your relationship with your children? If so, consider
experimenting. Try something for a month or two, and agree that you'll do
something totally different if the trial plan doesn't work out. For
example, try out a parenting plan and then, in a mediation session, make
adjustments that are an outgrowth of having some experience with shared
parenting.
Sometimes people are
afraid they will permanently waive their legal rights if they make a
decision, and as a consequence they become immobilized. In such a
situation, you might try to negotiate a temporary arrangement, with a
clear understanding that this will not set a precedent for the future.
In one of Dolores's
cases, although the husband wanted to move out, he was afraid to do so for
fear that he would be accused of abandonment and that he would lose any
right to the house and to shared custody. The wife agreed to sign a
temporary agreement stating that his move would not waive any of his
rights.
Sometimes lack of
sufficient information creates the impasse. Often the mediator can provide
the needed information. If not, the mediator may recommend an opinion from
someone both parties agree upon as an expert. This expert might be a child
psychologist, planner, a neutral attorney, or an appraiser. And you both
agree in advance that the expert's opinion will either be simply advisory
(you will take it into consideration) or that it will be binding (you
agree to accept the expert opinion to break the impasse).
The mediator's role is
to help the couple think through their respective positions regarding each
issue. We help to generate options, and we take an active role in
eliminating an impasse if it occurs.
Question 5
"Why is it so
difficult to separate or divorce?"
Do both of you find it
difficult? If so, you may want to try couples counseling before proceeding
with divorce. However, if only one of you is interested in counseling,
then it's probably time to come to terms with the separation.
There's often
ambivalence about saying goodbye. This is usually a factor when couples in
mediation have difficulty agreeing on minor issues, seem to connect
intensely through anger, or, when the agreement is almost complete, seek
to change some of the terms.
During the process of
mediating the separation agreement, your fears will begin to subside as
you learn to negotiate constructively and to resist your impulses to
engage in emotional arguments. Mediation will restore a sense of your own
power and autonomy. You will learn not only to assert your needs but to
plan for and develop control over your future.
Question 6
"We disagree on so
many things. How will we ever negotiate a settlement?"
Being unable to agree is probably a major reason you're planning to
separate or divorce. Throughout your marriage, you may have been
disagreeing openly and feeling hostile to each other, or you may have been
holding back your hostility to avoid a confrontation, but you were
probably having those disagreements silently in your own mind. If
communication has broken down but you want to make a settlement, you will
find mediation extremely helpful. The mediator will help you communicate
about the necessary issues and will stop both of you from rehashing past
disagreements. She will keep you focused on your individual and separate
future plans and will strongly encourage you to let go of the
argumentative habits that didn't work in the past.
Question 7
"When we argue, my
spouse always wins. How will I be able to negotiate under these
circumstances?"
If you feel overpowered by your spouse, you need to really examine why
your spouse always wins arguments with you. n Does your spouse win because
you're uncomfortable arguing?
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Do you feel guilty?
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Are you afraid of
confrontation?
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Are you afraid of
losing control? Your mediator's role is to keep the discussions calm, to
help you both assert yourselves without losing control. Remember, the
purpose of divorce mediation is to negotiate a settlement of the
practical issues, not to win an argument or to place blame. n Are you
afraid things will get violent?
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Does your spouse
threaten you? Don't agree to mediate under these circumstances. The only
exception is in some court-ordered mediation programs in which they have
special protective arrangements (security guards, separate waiting
rooms, controlled departures, etc.) for couples where violence is an
issue. This is obviously not possible in a private mediator's office,
which is why we don't recommend it.
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Do you stop arguing
because you believe your spouse knows more about an issue?
Here, mediation can be
helpful. Your mediator will assist you with negotiation techniques and
with information. Mediators have many ways to empower the weaker party at
any point in a negotiation, and remember, each couple relates differently
on different topics. You may feel less knowledgeable than your spouse in
some areas, but in others, you'll feel confident and your spouse will be
the one who is unsure.
Your mediator will
remain in control of the process and keep the focus on the future.
Clarification will be encouraged, confrontation discouraged. Mediators
support the expression of ideas, but they don't permit disruptive
behavior.
Question 8
"My spouse discusses
every detail of our separation with her family and close friends, and
everyone gives her advice. How can we negotiate under these
circumstances?"
In many families --and indeed
in many cultures --marriage is a joining of families, and there is a
strong tradition of family involvement even before the marriage. In that
context, it isn't surprising that families often are very involved if the
marriage is in trouble. It may be appropriate to discuss the point of view
of the involved family members at the beginning of mediation so that their
feelings are clear to the mediator. If close friends play an important
role in your spouse's life, it may be necessary to allow your spouse to
state their viewpoints once, and then establish some ground rules about
their involvement.
An attempt can be made
to experiment with realistic limits about with whom you may discuss the
separation while you are engaged in the mediation process, how frequently
you may speak with them, and what topics are off limits for the moment.
Both you and your spouse probably suffer additional stress as a result of
the confusion and misunderstandings caused by all that cross-talk, and
couples often find that these limits are a relief.
Question 9
"We tried to work
the marriage out but couldn't. I know divorce is the only answer, so why
am I depressed?"
The depression may be in anticipation of the losses you fear, and you may
be grieving.
The end of your
marriage, and the possible loss of significant relationships, familiar
surroundings, and financial security often lead to feelings of sadness and
worthlessness. Insomnia and an inability to concentrate are not unusual in
this period.
If you have had other
significant losses earlier in life, or if you have a history of
depression, your upcoming divorce may trigger a deeper, more serious
reaction. It is important that you see a therapist to determine the extent
of your depression and to obtain appropriate help.
It helps to know that
feeling very sad about divorce is normal. There are different phases, or
stages, that people who are grieving commonly pass through. Elisabeth
KŸbler-Ross described these stages as shock and denial, anger, bargaining,
depression, and acceptance (in that order). Try thinking about your recent
experience in terms of where you have been and where you are in these
stages. Remember, it takes time to work your way through these phases, but
it doesn't take forever.
Some of your sadness may
be linked to anxiety about the future. You will be helped by working
through the details of your divorce in a calm, supportive setting where
you can plan for the future. While some sadness may remain, you will
experience relief as each issue falls into place, and you will gradually
be able to accept the changes that your divorce will bring.
Question
10
"I've become very
suspicious of my spouse. How can I trust her in mediation?"
Are these feelings that you
had during the marriage, or are they directly related to the decision to
divorce?
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Have you caught your
spouse in lies throughout the marriage? If your spouse has been
dishonest during the marriage, you will undoubtedly convey that to your
mediator early in the process so that she will be alert to any possible
deception might affect the settlement.
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Is it only now that
you are suspicious? If you express doubt about anything your spouse says
with regard to the settlement, the mediator can make sure that all the
facts are fully disclosed so that the settlement will be fair. If full
disclosure is not made, the mediation cannot proceed.
There is another
possibility: the divorce process itself can bring on feelings of mistrust,
suspicion, betrayal, and even paranoia. And the friends and relatives you
turn to for advice may increase your fears; they may want to be
protective, give advice, or tell war stories about divorce. If you've
visited any litigators, they may have increased your suspiciousness
because it's their duty to tell you the worst that can happen and to
formulate a plan of attack.
In contrast, mediation
is helpful in building trust. Your mediator will be emotionally supportive
and will require that all necessary information be shared. Since you will
be in the room together throughout the mediation, you can observe your
spouse's reactions to all the issues. This atmosphere encourages candid
discussion, and you will find that it decreases your feelings of distrust.
Question
11
"I'm frightened. My
spouse has been very abusive. Can we mediate our divorce?"
If your spouse has recently been physically abusive or has frequently been
intimidating or threatening, we would generally recommend private
mediation.
Has there been physical
abuse? We feel strongly that if there is a recent history of abuse of you
or of your children, the relationship is too threatening for you to be
able to negotiate effectively --even with the help of a mediator. You may
be too fearful to be appropriately assertive about what you want in the
mediation session, and you may be in danger after the session if your
spouse has been upset in the session.
Has the abuse been
verbal or emotional? If the abuse has been exclusively verbal or
emotional, here are some questions you should ask yourself to help decide
if mediation is possible:
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Has my spouse
frequently tried to intimidate me with insults, accusations, or threats
of violence? Even though things have never gotten physical, does this
behavior make discussion impossible? Does it make me feel powerless?
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Am I afraid my spouse
will threaten me after each session? Will I be afraid to speak up in the
session, even with the mediator's help?
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Was my spouse's
abusive behavior linked to alcohol or drug abuse? If so, is my spouse in
recovery? For how long? Is there a strong enough support system in place
so that a relapse is unlikely?
If you are fearful, it
is probably better that you not deal directly with your spouse. We suggest
you hire a lawyer to represent you on your behalf.
This article has been
edited and excerpted from The Divorce Mediation Answer Book by Carol A.
Butler and Dolores D. Walker (Kodansha America, $16). In this accessible
question-and-answer guide, two practicing experts offer sound advice about
the divorce mediation process. You'll find answers to questions such as:
what are the advantages of mediation; how do we find a mediator; what if
we don't agree with the mediator's recommendation; and what are the best
ways to help our children survive the process? There's also a terrific
resource section that lists mediators around the country as well as other
sources of valuable information to help you save time, money, and
emotional energy. Available at better bookstores, or by calling (800)
451-7556.
Please visit the
websites of the authors of this article:
Dr. Carol A. Butler,
PhD
www.SeeTheOtherSide.com
Ms. Dolores D. Walker,
MSW, JD
http://www.divorcenet.com/portal_memberdata/dwalker
Reprinted with
permission, April, 2005.
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