As a man changes his own nature, so does the attitude of the world change towards him.—Mahatma Gandhi

Today’s is a low trust world.  That’s why there’s so much bullying, fighting and litigation.  Don’t you wish you could live in a better world?  You can.  I’ve seen it happen in divorce cases over and over again.

How many of you have a hard time trusting your ex?  Or even worse, their new mate?  Holy smokes, why is this guy talking about trust?  I can’t stand that &@#%^$%!.

But you’re negotiating about important issues of child rearing, financial issues and the like.  You want to get through this without spending money on lawyer and expert fees.  Therefore, trust may be what you need.

High trust is like oil in the gears of any negotiation.  High trust reduces your legal and transactional costs exponentially.  Low trust leads to appraisal evaluations, child custody evaluations costing thousands, multiple court hearings and huge attorney’s fees.

Consider the store owner Bill, who orders 1,000 widgets from the factory.  He knows the factory owner Janet to be a person of great integrity.  He has placed hundreds of orders over the last 5 years, and each time he gets widgets of high quality, delivered on time.  Bill has always paid Janet on time, occasionally even paying a bonus for work well-done.

About a year ago about 10 percent of the widgets had a flaw that made them unsellable.  Janet immediately rectified the situation by refunding the money for the defective widgets and delivering salable widgets immediately.

Bill doesn’t need to hire a lawyer or write up a lengthy contract.  He knows he won’t have to involve the courts to enforce performance of the contract.  He needs to keep enough widgets in stock to satisfy his customer base.  Whenever his stock is getting low, he places a call to his supplier:  “Hey, Janet, I’m running low.  Can you get 1,000 widgets over to my warehouse by week’s end?”  Janet says, “Sure.  I’ll get the order ready as soon as possible.  Hey, my suppliers have raised their rates and I need to increase the cost by 10 cents per unit.  Is that alright with you?”  “Sure, Janet, that will be fine.”

When people can do business on a handshake, transaction costs go to almost nothing.  But how did Bill get there?  And more importantly for you, how can you get there with your ex?  Let’s break down what happened between Bill and Janet that led to the high trust.

• Bill and Janet have a relationship that has spanned years.
• Over those years both have been willing to make agreements and compromise.
• Each time they have an agreement, both parties promptly do what they promised.

How do you build trust, or overcome mistrust in your relationship with your ex?  Here are some pointers:

1.  Be reasonable and willing to enter into agreements that benefit both of you.  The first half of the trust equation is a willingness to stretch yourself and reach agreements.  These normally aren’t perfectly aligned with your interests, but they are designed to maximize the benefits to both parties.

2.  Be trustworthy.  The other half of the trust equation is to follow through on what you said you were going to do.  Over time, if the support payments are made on time, or you’re there promptly at the exchange time and place for little Johnny, you become predictable, and the other starts to believe you can be counted on.

3.  Leave the past in the past.  Don’t bring up the issues that divided you.

4.  Think win-win.  Be a problem-solver and avoid complaining.  If you want to vent your feelings, call your best friend or your therapist.  When negotiating with your ex, try to find win-win solutions.

My final remark is that trust takes time to build, but it can be shattered in a second.  Try not to do or say things that will destroy the trust.  Start behaving in predictable ways.  Over time you’ll find that cooperation will get easier.

Abraham Lincoln is quoted as saying “A lawyer’s time and advice are his stock in trade”.  As a mediator, my stock in trade is really trust.  I exert effort to build and protect trust.  When negotiating divorce issues, you should too.

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

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Thomas Ferreira here for this installment of my five secrets to successful divorce negotiation. Today I want to talk about dropping the “A” bomb. The “A” stands for “attribution.” Dropping an attribution can produce a 5 megaton explosion guaranteed to blow up your negotiations.

How many of you have been trying to influence someone, and had that person make some throw-away comment that leaves you feeling like you were kicked in the stomach? It’s likely a belief they have about your character, a belief that challenges how you see yourself. Here are some typical A-bombs: “…that’s because you have to control everything,” or “my goodness, you’re such a bully.” Comments like “you are always so irresponsible with money” may contain a grain of truth, and that’s why they hurt so much. No one likes to see themselves as irresponsible.

Three Levels of Communication:

When I mediate negotiations, I’m on the lookout for 3 levels of conversation.

The surface level is the factual conversation, or the “what happened” conversation. Consider these frequent assertions that frequently occur in divorce negotiations:

a. The family home is worth $350,000.

b. You were arrested for drunk driving last year.

c.Seventy percent of the 401k is community property.

The next level of depth is the “how do I feel about that” conversation:

a. When I think about selling our home, it hurts to think of all the times we had there.

b. I feel ashamed that I drove the car after drinking, but I’m proud of the things I’ve done to atone for that mistake.

c. I’m afraid I won’t have the money to retire when I’m 65, and I’ll be out on the street begging for quarters.

The deepest level, and the one that holds the most power, is the character conversation:

a. Family is more important to me than it is to you.

b. When I make a mistake, I face it like a man.

c. I am a prudent saver, not willing to rely on others or the government for a handout.

The character conversation involves how we see ourselves. It is the foundation of our self-esteem, and when others attack us there, we defend ourselves like we’re fighting for our lives. That’s because we are, in a sense, fighting for our lives. After all, if I believe that I’m irresponsible, or that I’m a lousy parent, or that I never do anything good for the kids, those beliefs will drain me of drive to take responsibility, to take selfless actions, or to build a relationship with the kids.

My advice is to consider carefully the power of statements begin with the words, “That’s just like you…”, or “There you go again…” or “you always…” or “you never…”. What follows these attribution phrases are fighting words, words that attack a person’s foundation of how they see themselves. By contrast, when an attribution is aimed at you, stop for a second before becoming defensive. Adopt a curiosity stance and ask them for more details about their proposed solution. Steer the conversation back to business and away from the personal.

Here’s another technique for the seriously advanced negotiator. Try a positive attribution, something like “I really appreciate how you’re stepping up to the plate.” Affirming another person’s positive beliefs about themselves can disarm an otherwise angry and bitter foe, and turn them into a co-problem-solver.

Remember that making that other person your ally instead of your enemy can save you huge litigation dollars, and avoid the most painful and destructive part of divorce: going to court. In showing some kindness to your soon-to-be-ex, you’ll be on your way to …

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

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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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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:

Positions:

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.

Interests:

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!

Thomas D. Ferreira, Esq.

The post FIVE SECRETS OF SUCCESSFUL NEGOTIATION. Secret 2: Converting Positions to Interests appeared first on Carlsbad Divorce Mediator and Legal Document Assistant.

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:

KNOW WHAT YOU WANT GOING IN TO THE NEGOTIATION.

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.

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The usual attorney sales pitch starts and ends with the attorney’s credentials, the attorney’s education and attorney’s accomplishments.  It proceeds through a proven sales formula involving fear of loss, a fear that is already front and center for most of you.

But if you’re like me when I got my divorce, you’re already feeling afraid and overwhelmed.  A consultation with many attorneys will make these feelings worse, not better, especially if they have the fear of loss strategy.

Many attorneys approach the initial consultation as more of a sales opportunity than a chance to help.  I hear many stories of divorcing people being asked to tender a credit card before an attorney will even even talk to them.

Listen, us lawyers do need to make a living. But when your family’s on the line, a great bedside manner can make a huge difference in your level of satisfaction after the judgment, when satisfaction really counts.

Make your choice based on your values and goals.

As with every other decision, your attorney selection should be governed by your own personal goals.  For some of you, making sure you don’t get taken advantage of is your primary concern, and money is no object.  If that’s you, look for the sites that tout credentials, certifications and an aggressive approach.  You’ll be able to tell these attorneys by looking at their websites, which typically feature pictures of law books, granite columns and gavels. These lawyers seek to create a certain mystique.  For these lawyers, get ready to put down a hefty retainer and to replenish that retainer frequently.

Elsewhere I have discussed the importance of taking stock of your values when making decisions, and this decision is no different.  Do you want to

• Avoid conflict that can harm your ability to parent or let go?
• Have some money left over to rebuild your family after the case is done?
• Finish the case quickly?
• Avoid the negative head rush of pain and anxiety of court hearings and trials?

If this describes your divorce goals, I recommend that you avoid the gavel and granite pillar law firms.

What is the lawyer’s style?

When I was practicing in the insurance and personal injury arena, I learned from my mentors that the best way to settle cases and increase client satisfaction is through taking aggressive actions, filing extreme pleadings, and in general creating risk for the other side.  I was taught to spare no expense in preparing every case as though it is going to trial, so that you can settle from a position of strength.

This is sage wisdom for most litigators, but it’s old school and and doesn’t work well when dealing with families.

The bullying approach, that of fostering fear to muscle your adversary into a resolution, is likely to increase costs as lawyers pursue extensive discovery, multiply motions and prefer going to court over a common-sense, problem-solving approach.  It is also likely to drag the case out and keep you emotionally stuck.  If you have children, the bully approach will harm ability to cooperate with your ex in child rearing.

Go with the attorney who cares about your family.

If your friend tells you that you have to get the attorney he used, ask him how much he spent on attorneys fees.  If the answer is over $10,000, consider choosing someone who will keep your costs down.  If it’s over $20,000, run like your hair is on fire.

I recommend that you go with the attorney who puts your family ahead of his or her own interest in dragging out the case.  Go with the lawyer who suggests win-win solutions during the initial consultation.  Go with an attorney who will keep you out of court and only involve the court when necessary.  Avoid those attorney’s who try to impress you with their own prowess—remember, your fees help pay for those granite columns.

I remain …

Thomas D. Ferreira, Esq.

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