Thomas Ferreira here, divorce and child custody lawyer and mediator in North San Diego County.  Today I want to share the first of five secrets to negotiating agreements with your ex.

How many of you out there can’t seem to get your ex to agree on anything?  Whether it’s the amount of support, whether to keep or sell the family home, or whether you want Johnny to stay with you through Monday instead of returning him on Sunday at 3:00, family law cases are fraught with difficult conversations.

Tammy Ferreira (my intrepid Certified Divorce Financial Analyst™) and I have successfully mediated over 300 divorce and child custody cases, and we have seen every negotiation style.  We know what works and what doesn’t work.  And this is critical, as if you cannot successfully negotiate solutions to divorce and custody problems, you’re probably going to have lots of court dates and spend a ton on litigation.

I want to share these secrets of successful negotiation so that you’ll get what you want, and what you need, in your case.  These secrets work even if you have an attorney.  And they’re not what you think.  The “art of the deal” in family law requires more than just posturing, threatening and bullying.  You have to think “win-win,” that is, start thinking about the problem from all angles, and find the solution that benefits both parties.  A mutually beneficial solution is so much easier to sell to the other person, because it benefits them.  Why on earth would your ex refuse a solution that benefits him/her, just because it also benefits you?

So here’s the first secret:


If you are confident and poised during the conversation, you’re more likely to get a good deal.  I advise that before you make that call or attend that mediation or meeting, that you think long and hard about what you want.  This preparation should cover three areas:

1.  What are the facts on the ground?  If you are tackling financial issues, have a good idea of what the asset in question is worth, and what it’s worth to the other party.  For example, it’s easy to find some comparative sales (“comps”) on the marital residence and calculate the equity.  But do you or the other person have a sentimental attachment to the property?  Such an attachment is an intangible value that increases the size of the pie to be divided.  Your spouse may be willing to let go of something else to get that home.

2.  What specific outcome do you want?  Think also about the specifics of your desired outcome.  I am often surprised that parents haven’t thought through the exact parenting plan that they want for their kids, that is, the schedule that the children will have between the parents.  Decide in advance what you think would be ideal for your children, and avoid statements like “I want 50-50,” or “I want what is fair.”  Knowing the details of your desired outcome will give you confidence to ask for those details, and will push the needle in your direction.

3.  Know your BATNA.  “BATNA” stands for “Best Alternative to a Negotiated Agreement.”  What’s your bottom line?  At some point, it becomes better to take your chances in court than to agree to something that’s clearly unreasonable or unacceptable.

In determining your BATNA, it is important to understand the value of avoiding litigation.  There are other costs than money or parenting time.  Court tends to destroy trust and ability to work together.  Also, court is stressful and upsetting.  There’s value in avoiding it, and this needs to go into the calculations.

Next week I’m going to talk about the magic of turning positions into interests.  Until then,

Love your family, protect your finances, and reach for your future.

Thomas D. Ferreira, Esq.

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.