In many ways these may be counter-intuitive and most of us tend to adopt horse-trading or souk-style negotiations. While it is fine for me to simply assert that I am right that the carpet should cost 20 and not 100 Dinars and I may in the end be able to buy it for 30 Dinars, if the carpet-seller does not go down with the price to that level, I can walk away. I may not have bought a carpet, but I have not suffered any great loss.
Interests not Outcomes
In family situations matters are hardly ever that clear cut. So if we simply argue about whether the sale proceeds of the house should be split 50/50 or 60/40, this will probably not get us far unless and until one party simply gives way because they are tired out. At least that party (but more often both) will then be dissatisfied with the outcome; both parties will probably feel exhausted by the process. At the same time other issues are forgotten. It is actually easy for lawyers to forget a lot of things that may matter to you, such as:
- The book, CD or painting that is in the house and that you desperately want to have because it has great sentimental value.
- Mutual friends may be (or feel) forced to take sides and either do so or retreat from both of you.
- Even worse, the same may apply to children, who are more likely to feel the tension and stress their parents are going through and may even blame themselves. If they take sides, which one of you will be invited to dance at your daughter’s wedding?
- The time dimension: It may matter more for one party to be able to stay in the house until a certain point in time (e.g. getting a new job, retirement, child finishing their GCSE exams, promotion) than how much exactly they will get as a share from the sale proceeds.
- Who gets the dog or the cat; or even: can you pick up the dog occasionally for a long walk on a Sunday?
- The ability to get on with your life sooner rather than later.
- Legal costs, which can be excruciatingly huge if financial divorce or dissolution cases are battled to a full final hearing.
In mediation and in collaborative law solutions are possible that the courts and the law cannot provide. All families are different; they have different needs and different priorities. Since the main law guiding divorce for example was made by Parliament in 1973, society and families have changed dramatically. Although the law is flexible, it misses out a whole range of solutions that Parliament just did not think of at the time. The only way to get out of these constraints is for you to come to a negotiated agreement and mediation and collaborative law are the best ways of doing so.
Issues not Personalities
Another important ingredient in principled negotiation is that in the argument you attack the point not the person. If you want to buy a carpet, you could call the carpet-seller a “thief” for asking for 100 Dinars. The chances are he will be so offended that he will not want to sell you the carpet at all. He will send you away and you buy a carpet from some other shop or not at all. When you have to disentangle a family situation, you are, however, stuck with the person you negotiate. Arguing that they are dishonest or bad negotiators will get you nowhere because you cannot swap your former partner for someone else in the negotiations: you are separating from that person and you have to negotiate with that person.
If one person does in fact repeatedly show they are unable to negotiate in good faith, mediation or collaborative law are not an option and the matter will have to be resolved by litigation.
Enlarging the Pie
Apart from showing respect and basing negotiations on reasoned arguments rather than I’m-right-you-are-wrong ones, another aim, important in the family context is to see whether the pie that is supposed to be divided can actually be enlarged: You can only divide £100,000 once, but if you put in the option of payment earlier, sale of the flat realising the £100,000 later, or who gets the pet, the pie is suddenly larger than £100,000 and you can both get more between you than you could have got before.
Often some things that are vitally important to someone are not at all important to the other.
A trivial example to illustrate the point would be the parent who when two children quarrel over an orange cuts it in two halves and gives one to each child. If the parent had stopped, asked each child why they wanted the orange and listened to them, the parent would have found out that one child wanted the juice to drink and the other wanted to grate the rind for a cake. By slicing the orange in half, each child got exactly only half of what they wanted, when in fact they could have got all they wanted if the parent, or they themselves, had explored their underlying interests.
In mediation the mediator will be helping you to negotiate on a principled basis, to explore options rather than make demands, to listen to each other’s interest before coming to conclusions.
In collaborative law, both your collaboratively-trained lawyers will help you to negotiate in this way..
2 June 2016 by Andrea Woelke