Thomas Ferreira, divorce lawyer and mediator in Carlsbad, California here.
Alchemy is the fabled art of turning base metals into gold.
This week’s topic is absolute alchemy for those of you who are negotiating over issues of child custody, support or property division in divorce cases. It is a technique that I learned during my training at the National Conflict Resolution Center for mediation, and it is a vital tool for any negotiator. Successful negotiation requires a shift of perspective from the parties’ positions, to the vital interests at stake in the negotiation. Making this shift allows you to find win-win solutions instead of trying to divide a finite pie into smaller and smaller pieces.
An Orange Parable:
Consider this exercise and try it with your friends. The parties are in bilateral negotiations over which country will get a special genetically-rare orange (it’s cheating to cut it in half—each party in this exercise needs the whole orange to satisfy their respective country’s needs). In one party’s secret facts, they are told that they represent a government of a country whose scientists have found a cure for an epidemic disease, running rampant in their country. But they need a special chemical that’s found only in the peel of the orange.
The other party is given a different set of secret facts. In their country, there is widespread famine, and the orange is a special orange that they need to help to create new foods to solve the starvation problem. They are told that they must get the orange, because the salvation of their country lies in getting hold of orange’s center.
In negotiating exercises, the parties are set to negotiate for the orange, but they are not privy to the other side’s secret facts. Most students came up with the obvious solution after a few minutes of discussion: Hey, I need the peel, and you need the center. Why don’t we share the orange, and I will take the whole peel, and you can take the whole center. Sadly, some students did not reach the solution because of the low trust and high stakes involved in the negotiation. Sound familiar?
Here’s the alchemy of turning positions into interests: Both parties needed the whole orange, and their position was that they had to have it. Thus, there was no room for compromise. That’s a lot like family law negotiations, where you can’t just divide a family home or a child into two pieces. But compromise only seems impossible.
Most people come to settlement discussions with a classic win-lose approach. This approach sees the negotiation as something you win by bullying your opponent and instilling in them a fear of loss. Sadly, this is the dominant paradigm of attorneys when negotiating cases. But a subtle paradigm shift can change the negotiation from win-lose to win-win, and open up possible solutions that no-one previously considered.
How It’s Done:
The secret is to go behind the positions of each party to tease out the parties’ interests driving their adherence to the position. One important trick to doing this is to state the interest in neutral terms that do not convey some sort of moral “should” that biases the discussion toward one position or the other. Here’s an example:
Wife: I want to live in the family home, and the court will probably give it to me. Husband: I want to sell the family home and divide the proceeds. That’s what the court would likely order.
Let’s brainstorm some ideas for interests associated with the parties’ positions. I’m sure you can find more, but here’s a partial list:
- The parties’ relative emotional attachment to the home.
- The interest of the children in stability and continuity.
- The ability of the parties to afford the mortgage payments on their own (financial security).
- Other assets in the estate that could offset one party taking the home (ability to pay or refinance).
- The effect of living in the family home on a party’s or the children’s ability to move on or let go of the past (post-divorce happiness).
- The advantage that keeping the home might give to the staying party (interest in winning).
- The ease and expense of getting the home ready for sale, and work required of the parties (convenience).
- Fairness and equity.
- The ability of a party to refinance and relieve the other party from the mortgage payment after transfer of the home (security).
- The effect of sale versus a transfer to one party on the parties’ credit score/credit worthiness.
- The effect on the sale or keeping the home on the parties’ and children’s overall financial wellbeing (Children’s interest in security).
This example is much like the orange, in that the parties have some shared interests and some that seem at first blush to conflict. Once we have explored the interests behind the positions, it’s much easier to have a discussion about the course of action to take. For example, if the wife has a deep sentimental attachment to the home, maybe there’s something that Husband is emotionally attached to that can be offered. Often, for example, men have an emotional attachment to retirement accounts earned through their work lives.
Or, it’s possible that Wife has not thought through the effect of keeping the home on her ability to “let go” after the divorce. I know that in my own personal experience, getting a new home was greatly symbolic of starting my new post-divorce life, and I wasn’t reminded of my old family life at the turn of every corner. In short, selling the family home helped me to move on from the divorce.
There are various financial difficulties and risks associated with keeping the family home that override sentimental concerns. It may be easier for Wife to swallow letting go of the family home when she realizes that paying that mortgage payment will eat up most of her spendable income and impair her ability to be self-supporting and self-functioning.
I find that in almost every negotiation, once we identify the parties’ interests behind the positions, solutions present themselves that the parties never would have even though of. This is the essence of “win, win” negotiating.
Next time I’m going to tackle a negotiation stance that disarms foes and greases the settlement skids for real. It’s called the “curiosity stance.” Until then,
Love your family,
Protect your finances, and
Reach for your future!