Thomas Ferreira here with the third secret to successful divorce negotiations.  I call it the “curiosity stance”.

How many of you have tried to negotiate your divorce or child custody case with your former partner, only to be met with “that won’t work because…” at every turn?  These four words can sound a death knell for creative, win-win divorce negotiation.  “We can’t sell the home because that’s where the children grew up.”  “I can’t agree to that support figure because that’s not enough money to cover my bills.”  “We can’t use the retirement account to pay our debt because we would be charged with taxes and penalties if we draw the money out.”

In my mediation training and years of assisting clients to resolve difficult issues, I have found it helpful to express curiosity about the other’s suggestions, even if I personally feel that they could never work in practice.  During such a process, a person sometimes will come to understand the reality of their position’s weakness.  Or, a solution will emerge that no one had previously thought of.  I have found that, often times, an important underlying interest of a party in negotiation is their desire to tell their story, vent their frustration, or just be heard by the other.  Once that’s out of the way, you can get down to business.

During brain storming ideas and solutions, I tell our mediation clients that there is no such thing as a stupid idea.  But what happens when a person seems stuck on a particular solution or idea.  They must  have the family home.  Or, they can’t touch that retirement account.  The fact is, many times the reasons for these positions are emotional.  In the language of interest, described in last week’s post, that person may have strong feelings on the subject, or entrenched beliefs about the consequences of a certain decision.

But you can’t get to the interests without knowing what’s behind these feelings and beliefs.  Instead of being curious, what people often do is vociferously and stridently to take the opposite position: “The only way to divide the home is to sell it and divide the proceeds.”  Or, “you’re going to have to dip into that retirement account to pay off the debt that it the result of your profligate spending.”  Or worse even, the parties attack each others’ character with statements like “if you weren’t so uncompromising all the time we might have been able to make this marriage work.”

Such statements provoke a defensive stance in the other, and destroy any hope of getting at that person’s real concerns.  Moreover, such statements are polarizing, causing the parties to dig further into their positions.  Litigation, anyone?

Instead, be curious about the other’s thinking and reasoning, and, also how they feel about certain results.  Use open-ended questions that get the other talking more deeply about the issue.  For example, “Talk to me about how keeping the home would work in practice.”  Or, “when you talk about selling the house, what comes up for you?”

When negotiating over important, high-stakes issues, it is vital to check your first impulse to lash out with “that will never work,” or “that’s the dumbest idea I’ve ever heard.”  Take a deep breath and ask some questions to get the person talking about their suggestion.  Allow yourself to be curious about where they are coming from and suppress the urge to push back.  You might just learn something that will make the negotiation easier than you thought.  Who knows?  You may find out that you need only the peel of the orange, and he only needs the center.

Thomas D. Ferreira, Esq.

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