Negotiation Skills

How can we negotiate when different people giveus contradictory information?

One possible reason for the confusion is that the law is unclear or not specific enough about your particular issues. Although there are guidelines in every state regarding child support, there are many legal concepts that apply to divorce but are open to various interpretations.

If you go to court, the decision about your issue may depend on the latest case or on the judge's opinion. In mediation you will explore various alternatives and will develop a solution that makes the most sense for your situation.

Some of the more puzzling concepts are:

  • What exactly is equitable distribution?
  • What is the value of a professional license? Does
  • it make a difference that I've been in practice forseveral years?
  • Who is entitled to alimony or maintenance? Howmuch? For how long?
  • What are the rules about out-of-state relocation?

There are many other questions that individual states may or may not address by way of guidelines, but your mediator will beknowledgeable about the issues involved, and there is almost always plenty of room for a range of outcomes.

By the way, we address all the questions raised above in various places in this book - but that doesn't mean we have all the answers!

I feel immobilized although I know a divorceis inevitable. What can I do?

Immobilization is often a symptom of fear, like being caught in the headlights of a car while crossing a road at night and being unable to move. The inability to act may be fear of telling your spouse you want a divorce, or fear of your children's or your family's reactions, or fear about surviving financially. It may be guilt or shame about wanting the divorce. It may be a sign of resistance to accepting the fact that a divorce is inevitable.

We suggest you talk to a good friend or family member about how you are feeling. Just try to open up a little. You'll be surprised at how your feelings and thoughts shift around and things begin to make more sense. If you have been talking and still feel immobilized, consider a few sessions with a therapist.

Once you begin the process of moving toward divorce, you will feel energized. When you settle some anxiety-producing issues, you'll begin to feel more comfortable about your future. Taking action leads to further action, and you'll become focused on the future rather than the past.

Also see Question 12: We tried to work the marriage out but couldn't. I know divorce is the only answer, so why am I depressed?

My spouse discusses every detail of our separation withher family and close friends, and everyone gives her advice. How can we negotiate under these circumstances?

In many families—and indeed in many cultures—marriage is a joining of families, and there is a strong tradition of family involvement even before the marriage. In that context, it isn't surprising that families often are very involved if the marriage is in trouble. Itmay be appropriate to discuss the point of view of the involved family members at the beginning of mediation so that their feelings are clear to the mediator. If close friends play an important role in your spouse's life, it may be necessary to allow your spouse to state their viewpoints once, and then establish some ground rules about their involvement. Also see Question 22 in Chapter 1: Can I bring a relative with me to the mediation sessions?

An attempt can be made to experiment with realistic limits about with whom you may discuss the separation while you are engaged in the mediation process, how frequently you may speak with them, and what topics are off limits for the moment. Both you and your spouse probably suffer additional stress as a result of the confusion and misunderstandings caused by all that cross-talk, and couples often find that these limits are a relief.

We tried to work the marriage out but couldn't. I know divorce is the only answer, so why am I depressed?

The depression may be in anticipation of the losses you fear, and you may be grieving.

The end of your marriage, and the possible loss of significant relationships, familiar surroundings, and financial security often lead to feelings of sadness and worthlessness. Insomnia and an inability to concentrate are not unusual in this period.

If you have had other significant losses earlier in life, or if you have a history of depression, your upcoming divorce may trigger a deeper, more serious reaction. It is important that you see a therapist to determine the extent of your depression and to obtain appropriate help.

It helps to know that feeling very sad about divorce is normal. There are different phases, or stages, that people who are grieving commonly pass through. Elisabeth Kübler-Ross described these stages as shock and denial, anger, bargaining, depression, and acceptance (in that order). Try thinking about your present experience in terms of where you have been and where you are in these stages. Remember, it takes time to work your way through these phases, but it doesn't take forever.

Some of your sadness may be linked to anxiety about the future. You will be helped by working through the details of your divorce in a calm, supportive setting where you can plan for the future. While some sadness may remain, you will experience relief as each issue falls into place, and you will gradually be able to accept the changes that your divorce will bring.

My affair broke up our marriage. If I mediate, I'll have to be in the same room with my spouse.I don't know if I can do that.

It can be difficult to face your spouse under these circumstances, and anxiety about asserting your needs when you feel at fault for your spouse's distress is understandable. It may help to keep in mind that the purpose of divorce mediation is to create a settlement, not to discuss why the marriage failed. In our practices, we sometimes complete a mediation and have no idea why the marriage ended; it has never even been mentioned.

While it's important to take responsibility for your actions, try to remember that a failed marriage is never the fault of just one party. Think about all of the issues that were problems in the marriage, and try not to put all the blame on yourself. As for facing your hurt or angry spouse, the mediator can help by keeping the focus on negotiating the settlement, and de-escalating feelings or conflicts that may arise.

If you are uncomfortable being assertive about the things you need, be reassured that the mediator will help you express your views and needs. The reality is that the marriage is over, and you both need to move on with your lives.

I've become very suspicious of my spouse. How can I trust her in mediation?

Are these feelings that you had during the marriage, or are they directly related to the decision to divorce?

  • Have you caught your spouse in lies throughout the marriage? If your spouse has been dishonest during the marriage, you will undoubtedly convey that to your mediator early in the process so that she will be alert to any possible deception that might affect the settlement.
  • Is it only now that you are suspicious? If you express doubt about anything your spouse says with regard to the settlement, the mediator can make sure that all the facts are fully disclosed so that the settlement will be fair. If full disclosure is not made, the mediation cannot proceed.

There is another possibility: the divorce process itself can bring up feelings of mistrust, suspicion, betrayal, and even paranoia. And the friends and relatives you turn to for advice may increase your fears; they may want to be protective, give advice, or tell war stories about divorce. If you've visited any litigators, they may have increased your suspiciousness because it's their duty to tell you about the worst that can happen and to formulate a plan of attack.

In contrast, mediation is helpful in building trust. Your mediator will be emotionally supportive and will require that all necessary information be shared. Since you will be in the room together throughout the mediation, you can observe your spouse's reactions to all the issues. This atmosphere encourages candid discussion, and you will find that it decreases your feelings of distrust.

I decided, for my own protection, to open a separate bank account, and now my spouse refuses to attend the mediation session. Can a mediator help get him to cooperate?

Just before divorce there are often cycles of hostility: disagreement, confrontation, silence, more hostility, and finally, as communication breaks down, some unilateral action, such as taking money out of a joint bank account and opening a new account. These actions lead to further anger and suspicion.

Encourage your spouse to contact the mediator. She will clarify that a commitment will be made that no unilateral actions will be taken during mediation. She can help the two of you work out a temporary agreement about what will remain marital assets and what will be kept separately, until the details of the final agreement can be resolved.

I'm frightened. My spouse has been very abusive.Can we mediate our divorce?

If your spouse has recently been physically abusive or has frequently been intimidating or threatening, we would generally not recommend private mediation.

Has there been physical abuse?

  • We feel strongly that if there is a recent history of physical abuse of you or of your children, the relationship is too threatening for you to be able to negotiate effectively—even with the help of a mediator. You may be too fearful to beappropriately assertive about what you want in the mediation session, and you may be in danger after the session if your spouse has been upset in the session.

Has the abuse been verbal or emotional?

  • If the abuse has been exclusively verbal or emotional, here are some questions you should ask yourself to help decide if mediation is possible: Has my spouse frequently tried to intimidate me with insults, accusations, or threats of violence? Even though things have never gotten physical, does this behavior make discussion impossible? Does it make me feel powerless?
  • Am I afraid my spouse will threaten me after each session?
  • Will I be afraid to speak up in the session, even with the mediator's help?
  • Was my spouse's abusive behavior linked to alcohol or drug use? If so, is my spouse in recovery? For how long? Is there a strong enough support system in place so that a relapse is unlikely?

If you are fearful, it is probably better that you not deal directly with your spouse. We suggest you hire a lawyer to represent you and to argue on your behalf.

See also Question 3 in Chapter 1: Are there drawbacks to mediation? Question 26 in Chapter 1: When should I refuse to mediate? And Question 12 in Chapter 10: My spouse gets violent and I'm afraid to go to court-ordered mediation. Can I get out of it?