Effective Negotiation Strategies in Divorce

Successful negotiations are not just about outcomes, but also about how you prepare for and handle yourself and the negotiation process itself. No one has a crystal ball to predict the outcomes of a negotiation, but you can learn how to get closer to the best possible outcomes and maintain relationships throughout the process.

Chris Voss outlines effective approaches to a negotiation in, Never Split the Difference. He reveals the power of empathy and connection to develop trust so that the other side will see the solution to your problem is also the solution to theirs. One of the primary principles of never splitting the difference is getting to “No,” before getting to “Yes,” a nod to one of the most famous books on mediation entitled Getting to Yes written by Fisher, Ury, and Patton.

Step 1: Listen actively and empathetically

Listen well to understand and respect the other side. Respond thoughtfully with mirroring and labeling, even repeating their last three words. Tactical empathy solves problems and leads to agreements six times more often in negotiations because it can calm down any fears that get in the way. A neutral statement that imitates the other sides language and reflects their affect or body language makes the other side feel seen and heard.

Neutral mirroring statements such as “It sounds like you are eager to find living arrangement that is safe for your children,” or “It seems like you are concerned about having enough income to make your mortgage payment,” serve this purpose. Give your opponent a break, a chance to correct themselves, or provide more information.

Step 2: Get to the “No.”

Allow the other side to respond to your statement. Even if you label emotions incorrectly, the other side can answer, “No. Not even close,” and go on to provide details about what they do want. Getting them to “No,” empowers the other side to state their position early and gets you closer to knowing their motivations and limitations.

Even questions that appear contrary to what the other side most likely wants can serve this purpose. For example, “It looks like you want to prevent any assistance being sent to maintain the current standard of living.” Maintaining four seconds of silence afterward will let them respond with more necessary details to further the discussion.

Step 3: Go for a “That’s right,” and include a “How?”

When you discover what the other side wants, make statements that do align with the other side. Make sure you get a “That is right” and not a “You are right.” One is a winning moment for the other side, the other signals a defeat.

Very calibrated follow-up questions will bring the other side closer to what you need of their own accord. For example, questions such as, “What do you suggest we do to make sure you’re paid monthly alimony that I can afford on my monthly income?” or “How can we make this happen?” You are sharing power and moving toward mutual benefit.

You can also return to listening and mirroring with a “It seems like there’s nothing I can do to make this work.” Always remember to pause. They’ll either tell you what would make it work or thank you for your time. Always end your conversations with a positive note, with encouragement and thanks for their time.

How is Negotiation Different from a Compromise?

  • A negotiation is not a compromise. It’s better.
  • Negotiation is a back-and-forth process rather than a one-and-done.
  • Negotiated solutions work much better than compromises on a lot of levels.
  • Effective negotiation requires that both partners know their agenda. What exactly are we deciding?
  • Effective negotiation also requires that we state our issue and our offers in a clear and precise way.
  • Persuasive negotiations include evidence, quantitative measures, and standards. Get your facts together. Meaning: know how much the car you want to buy costs before you walk into the dealership!
  • Pay close attention to assumptions that must be true for decision to turn out the way I want.
  • Be open to options and come in from an “interests” perspective rather than a standing firm on “positions”. Interests can be achieved in multiple ways. Positions limit you to only one. Offer and recognize reasonable trade-offs.
  • Be clear about your bottom line and your target and do not disclose either with your first offer or “anchor.” Be prudent about how to set your initial offer with margins above your target and well above your bottom line and move closer to your agreement by offering broader concessions at the beginning and tighter concessions each round to signal you are closer to the end of what you can offer and the process itself.
  • Be creative and generous with peripheral/bonus/non-monetary offers can you include to sweeten the deal and stay closer to your primary objective?

Loss Aversion as a Motivator or a Monster During Divorce Negotiations

Loss aversion is much more powerful motivator than gains. It can also lead to prolonged divorce and long-term costs that far exceed any immediate loss. Create a mental, or written, balance sheet of pluses and minuses, losses and gains, pros and cons for each issue you are considering. Be mindful of loss aversion in yourself and the other side throughout negotiations. Don’t let it rule you but use it effectively to motivate the other side and bring them closer to your side.

What to Do in a Divorce Negotiation When You Feel Stuck?

Be very honest with yourself about your BATNA (Best Alternative to a Negotiated Agreement) and your WATNA (Worst Alternative to a Negotiated Agreement). What could you possibly pursue or stand to gain outside of a successful negotiation? This could match your bottom line and signal the threshold when to end negotiations. This is your plan B. Your WATNA is the worst scenario that could happen to you should you fail to resolve a dispute through negotiation. Is this better than their bottom line or does it motivate you to stay in the game? It is considered best practice to talk in terms of ranges rather than exact numbers until final terms are being settled.

Preparing Yourself for Divorce Negotiations

A certified divorce coach could help you run through a brief self-assessment if you feel like you’ve hit a wall.

  • What if nothing changes? What might they lose? What might they gain?
  • Do you see negotiation only in terms of winning and losing?
  • What is the balance of gains and losses at this point? How might this change over time?
  • What clues is the other side giving you about what’s most important to them?
  • Where can you find neutrality and introduce choices that are neither gain nor loss.
  • What is your own reference point or foundation that might be impeding the negotiation?

What Could Go Wrong With Divorce Negotiations?

Problems in your agreement may not be obvious at first and sometimes aren’t realized until months or years later. When they do become obvious, they can be difficult and expensive to unravel especially following high conflict.

The CDC Certified Divorce Coach program outlines these pitfalls you can avoid:

  • Being too general. Ambiguity leads to disagreements in the future.
  • Failing to list all assets, especially retirement funds, and assuming they go to the person who earned them.
  • Failure to include specific legal descriptions of property or assets.
  • Not being specific enough in the parenting plan about future child needs, and defining ambiguous expenses (normal, ordinary, required, etc.).
  • Not thinking through enforcement issues. For example, if parties move and obtain a custody judgment in a state or territory where their children have never lived, can that judgment be recognized and enforced? If you transfer documents to another jurisdiction, are there waiting periods?

Adding a clause to the original settlement, that designates mediation as the resolution method for any future disagreements or modification requests, may be something to consider. Discuss this with your attorney or mediator.

Start Divorce Negotiations With the End in Mind

Two major components of sustainable agreements that start with negotiations are relationship and reputation. Undoubtedly during a divorce, the relationship between the two parties will be different than it was before. It will continue to change after the divorce. Sometimes a partner has made decisions that have caused harm to the other, reducing the degree of trust that was present before. This reduced reputation will impact the process. Be mindful of progressive ways to restore trust and the reputation of the other side. Their gratitude will help negotiations and improve your future relationship.

Likewise, how you proceed through the negotiation process will impact the nature of your reputation and your relationship after your divorce. Even as your family system is restructuring and going through a period of separation, relationship withdrawal, or even alienation, life is long and memory is too.

Put your best self forward and dig deep for any empathy and compassion you can find to plant the seed for your future family tree. The tree’s leaves may be a different color and the branches divided differently, but it can be just as strong for the future generation. Remember no one is an island – not you or your children and everyone needs a tree.

A great article on negotiation preparation is provided by the San Diego County Bar Association. You can read it here. You can learn more about Never Split the Difference here and Getting to Yes here.