Last month we talked about “win-win” negotiations in divorce mediation. As we discussed, the key to win-win negotiating is accurately identifying the interest, or interests, behind each position or demand. Identifying interests can be tricky though. It requires looking at things from someone else’s perspective. Whenever you reach an impasse in negotiations, it can be helpful to ask yourself if you are making assumptions based on your own ideas. If so, stop and listen carefully to what the other person is saying.
Once you’ve identified some underlying interests, the next question is how to effectively use them in negotiations. Let’s look at how this might work in an actual divorce mediation:
The Black and White Demand
Kathleen and Mark were both thirty-three when they decided to divorce after 12 years of marriage. By that time, Kathleen was a Nurse Practitioner earning approximately $120,000 per year. Mark had attended college for about two years, but then dropped out to work full-time in the construction industry. For most of the past three years he had been sidelined with a shoulder injury. This was a blow to his earning potential, but it also allowed him to be a stay-at-home dad to their now six-year-old twins while Kathleen worked full-time and completed her master’s degree.
At their first mediation session, Mark told Kathleen that he wanted to complete his B.S in civil engineering, so that he could move into less physically taxing work. He had been admitted to several programs, including one at Cornell University and one at Rutgers’ New Brunswick campus. He was asking Kathleen for “rehabilitative alimony,” to help him re enter the workforce. Specifically, he was asking her to foot the bills for his attendance at Cornell, which would amount to approximately $67,000 per year for two years. He argued that a degree from Cornell, which was clearly the most prestigious of the schools, would afford him the best career prospects after graduation. He also pointed out that Kathleen could easily afford the cost if she refinanced the family home, which she would be keeping in the divorce.
Kathleen thought Mark’s demand was ridiculous. Cornell’s tuition was exorbitant, and Mark would have to live about four hours away during the school months for two years, which would unnecessarily complicate their co-parenting situation. New Brunswick, on the other hand, was just up the road, and the costs of attendance would be less than half that of Cornell.
Considering Underlying Interests
Fortunately for Kathleen, she had received some pre-mediation coaching, both from her attorney, Blaze Daniels, and from her therapist, psychologist Carrie White. Because of this, Kathleen was able to refrain from indulging her first impulse, which was to launch into an incredulous rant against Mark’s demand. She had learned from experience that if she over-reacted, Mark was likely to dig in his heels, guaranteeing that they would make no progress. Instead, she calmly suggested that they put that on the agenda for the next session. Mentally, she reminded herself to discuss the issue with her attorney in the meantime.
Kathleen had decided to meet with Dr. White weekly for emotional support throughout the divorce process, so she was able to discuss Mark’s position with her a couple of days later. “I understand why Mark wants to be able to find a good-paying job within his physical limitations,” Kathleen began. “It’s harder for me to see, though, why he would consider a school that’s not only very expensive, but would also require him to spend so much time away from the children.”
“How about self-esteem?” the therapist proposed. “He’s been a stay-at-home dad without a college degree while you’ve gone on to get a master’s and a really good job. Think about how that might be affecting his decisions.”
Kathleen thought it over and eventually agreed. A need to bolster his self-esteem would explain why he would want to go after the most prestigious degree available. She added “self-esteem” to “financial security” and “health concerns,” as the interests underlying Mark’s demand.
Tying Interests into Negotiations
When Kathleen met with her attorney later in the week, she said she understood Mark’s interests, but she didn’t see how that would help her negotiate. Mr. Daniels suggested that they find out specifically what kinds of jobs graduates of each program held. It might be that there was very little difference between the two schools, in spite of Cornell’s higher prestige. If so, she could try to get Mark to focus on the self-esteem his ultimate job would provide, rather than just the name recognition of a more famous school. He also suggested that they focus on Mark’s other interests, not just those closely tied up with this demand.
“Well I know that parenting is very important to him,” Kathleen responded. “He’s proposed having the kids stay with him for three weekends a month at his parents’ house in New Jersey. Then he wants to flip the schedule in the summers, so that he has them during the week. It doesn’t seem practical though for him to travel to New Jersey from upstate New York three times a month. How would he get his studying done? And I don’t want to agree to it either. I work hard during the week, so weekends are when I have the most time with the kids.”
“Okay, so point out the drawbacks with his proposal. Then come up with a parenting plan that will give him 50/50 time if he stays in New Jersey. Since you know he’s invested in good parenting, approach it from the angle of what’s best for the kids. Explain that it will be less disruptive for them to have a plan that’s closer to your current parenting arrangement.”
Identifying a Bottom Line
Mr. Daniels also advised Kathleen to identify a bottom line before she started to negotiate. “If Mark is still set on Cornell after you point out all the benefits of staying in New Jersey, you could tell him that you are willing to pay for the cost of the Rutgers’ program, but that he will have to take out student loans to make up the difference. After all, if his argument is that he will get a better job if he attends Cornell, then it should follow that he will also be able to afford to pay back loans for the additional costs of going there. Be very careful also to state that if he gets any grant money, that should come out of your contribution. This year the school took your income into account, but next year when he’s single, things could be different.”
After talking to both Dr. White and Mr. Daniels, Kathleen felt much more prepared to go back and negotiate with Mark. By the end of their next session, Mark hadn’t yet made a final decision about which school to attend. He had agreed though, that spending more than two weekends per month with the kids probably wouldn’t be feasible if he was living in upstate New York. He’d also agreed to accept Kathleen’s offer of a $62,000 total contribution, regardless of which school he ultimately chose.
Do you think interest-based negotiations would help you resolve your issues? Contact us today for a free consultation.