“Win-Win” Negotiations in Divorce Mediation

One of the first things you may hear as a couple interested in divorce mediation is that the process offers “win-win” solutions. Many people find this description confusing. What is a win-win solution? How can we possibly both win when our interests are so divergent? We both want the house, we both want custody of the kids, one of us wants alimony and the other doesn’t want to pay it… Clearly someone has to lose!

“Win-win” doesn’t necessarily mean that everyone gets everything they want. That kind of result is rarely possible in divorce, since the essence of divorce tends to be dividing up resources. Win-win negotiating, however, can allow everyone to get more of what they want.

Other names for “win-win” negotiations are “integrative,” or “interest-based,” negotiations.  Interest-based negotiations are based on a person’s interests, rather than on their strictly-defined positions. A person’s interests are made up of needs, wants and fears. These typically underlie the positions people often present initially as rigid demands. An integrative process is one that blends or coordinates separate pieces into a unified whole. Court battles often begin as fights to carve up what the parties perceive as a pie with a finite number of pieces, each representing a loss for one person and a win for the other.  At its best, an integrative process can combine the various interests of the parties in a way that actually enlarges the initial “pie.”

Some divorcing couples believe that their cases are too complicated for mediation. The truth though, is that in general, the more issues you and your spouse begin with, the more potential there is for creative integration. Multiple issues present more opportunities for trade-offs across and among the different issues.

Identifying Interests

The key to win-win negotiating is accurately identifying the interest, or interests, behind each position or demand. Satisfying a broad interest is usually, although not always, easier than meeting a specific demand. For example, a spouse who takes the position of needing financial support to go back to school for a particular degree may have the broader interest of career development, and the deeper underlying interests of financial security and personal fulfilment. There may or may not be workable alternatives that would provide the spouse with a similar level of financial security and personal fulfillment as obtaining the particular degree.

Interests are not always obvious—even to the parties who hold them.  After parties present their initial demands, it is useful to break down each one by asking a series of pointed questions, such as:

  • Why do you want that?
  • Why do you need that?
  • What are you afraid will happen if you don’t get this?
  • What do you hope will happen if you do get this?

Confronting one’s hopes and fears is not an emotionally easy task. Sharing them with a soon-to-be-ex-spouse, who may well be someone you do not trust to have your best interests at heart, can be even more difficult. Divorce also has a way of attacking people’s most basic human needs. When the underlying interests are things like physical shelter, economic security, and a sense of control over one’s own life, people may understandably cling tightly to positions they perceive as critical to satisfaction of those interests.

Cultivating Mutuality

Examining interests must be a mutual endeavor based on open-mindedness and flexibility. Participants work to understand not only their own interests, but also those that underlie their spouse’s demands. It’s also important to realize that interests underlie both demands and opposition to demands. Looking at your demands from your spouse’s perspective can help you understand the interests that underlie your spouse’s opposition.

The process of identifying interests will be most helpful when it remains flexible and creative throughout the mediation. The parties can keep their lists in front of them, and modify or add to them at any time.  A mediator can be very helpful in phrasing questions about interests in ways that are supportive rather than challenging.

Brainstorming Options

Once each party has fully identified their underlying interests, both parties need to work together to figure out the best ways to meet as many of those interests as fully as possible. “Brainstorming” is a process that encourages parties to consider multiple alternatives. Each party lists every option they can think of while withholding initial criticism or dismissal of even the most ridiculous sounding possibilities. Often possibilities that are indeed ridiculous themselves can open the door to related possibilities that are not ridiculous.

Maintaining open-mindedness is crucial. Both parties must consider how they might change their positions to address their own interests in other ways. They must also consider various ways they can meet their spouse’s interests. At some point, a degree of compromise is almost always necessary. Using interest-based and integrative negotiation from the outset can set the stage for collaboration when compromise is necessary. Parties become invested in helping each other instead of opposing each other. This is also a positive basis for moving forward after resolution without ill will. Working toward a positive future relationship is an especially valuable goal when the divorcing spouses are also co-parents.

In our next post, we’ll take a look at what some of this looks like in a real divorce mediation session. Stay tuned!

Are you wondering whether or not you can have a positive divorce outcome through “win-win” negotiation? One of our caring and experienced mediators can help you decide. Contact us today for a free consultation.

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