Discovering What You Really Want From Your Divorce

How Interest Based Divorce Negotiation Can Get You There

Much is written these days about “interest based negotiation”.  What does this mean?  In part, it means discovering what your interests are and in part, it means not doing another kind of negotiation called positional bargaining. Positional bargaining is just what the name implies: taking a position by stating a specific result or outcome. In family law, these positions emerge as statements like “I want the family home” or “I want half of her income for 10 years” or “I want the children at least half of the time”. All of these are final outcomes or results.

Taking a position usually implies a narrowing of vision, an unwillingness to listen openly to the other person, and ultimately, an inability to compromise. Taking a position in a divorce often leaves the person with only two options: to dig in by being tough and demanding or to yield to avoid disapproval and further damage to the relationship. Once a person takes a position, the position becomes a security blanket, something to cling to for protection. As time goes on, our ego can become identified with our position. Considering other options becomes harder and harder because any movement off of our position is experienced as giving in, backing down and losing face. The process of haggling back and forth about positions and who is right can result in damaged relationships and causes people to miss opportunities for agreement because the haggling process has such a narrow scope between two positions.

Another way of approaching negotiation and other forms of problem solving is to define the needs and desires at stake and to generate multiple ways of meeting those needs and desires. This process is available in any negotiation but it is particularly helpful in a cooperative or collaborative process where all parties meet together in a conscious attempt to avoid litigation as the means of problem solving.

This short paper offers a process, outlined below, that we can use to help identify our underlying interests in negotiation. Once we take the time to do this, we aren’t fixated on any one solution or position and we create the space in which a mutually acceptable agreement can arise. If both parties in a problem solving situation take time to define their underlying needs, concerns and desires, solutions can emerge that neither person may have thought of before. In this way, the process addresses both parties underlying interests without unduly damaging their relationship and relationships with others.

To illustrate the difference between positional and interest-based bargaining, take the situation that frequently arises in divorces involving children. Both parents agree that they want a “fair solution” but one parent believes that “fair” means a 50-50 division of time and the other believes that she or he should be the primary parent. This is a very common opening for a dispute concerning parenting arrangements. Some parents will even count the time the child spends with each parent down to the minute or hour and refuse to agree to something with an unequal allocation of hours.

When we ask the question “Why do you want equal time?” we often hear “Because that is what is fair.” When we inquire “Fair to whom?” we start to discover that often the plan a parent wants is about the parent’s needs and not about the child. When parents realize that they are thinking about themselves and not their child this begins to help get deeper into what the underlying interests are. Just this realization alone can be enormously helpful. As the process continues, the parent is more able to shift the discussion to what the child needs and to be open to multiple approaches meeting these needs.

How to Decide What You Want Most

Interest-based divorce negotiation works when each party defines his or her underlying interests so that they can be straightforwardly discussed and addressed. What do we mean by underlying interests? Underlying interests are concerns that lie beneath our “positions”. These are needs, concerns, fears and desires that people cannot easily identify. How do we figure out what they are?  The process outlined below can help us get closer to defining what we truly care about and want out of the negotiation.

This process begins at the outer level of our understanding and works through the layers to arrive at our core interests. Start by asking a general question that is initially likely to generate a position. What do you want the outcome of this process to be?  As you answer this question keep asking”What else?”  And keep writing down all of the answers that come. In the example above, the answer initially would be “I want a 50-50 residential schedule with the kids.”

After you have written down your desired outcomes, begin to explore your deeper needs, concerns and desires. For each initial answer, ask yourself:”Why is that important?” or “Why do I want that?”  Write down the answers to each outcome that you originally identified. As these deeper answers begin to emerge, your real interests and needs are revealed and a range of possibilities emerges.

Using our example of the position “I want a 50-50 schedule” you might ask “Why is that important to me?”  The answers can vary. Some people say “Because the kids need to be with me.”  Then you can ask “why do the children need to be with me.”  Perhaps the answer is “Because I am a more stable parent.”  Then you can ask yourself if the children need anything other than stability, and perhaps the other parent provides that.

This inquiry focuses us on the fact that children have many needs and all parents can fulfill some of those needs. Of course, one of those needs is to live in a family without conflict. When parents start to realize that their positions and demands are contributing to conflict that can ruin the child’s experience of childhood it makes parents think twice about their positions. Parents eventually discover that what they really want is for their children to be happy and well adjusted. They come to see that the child’s well being is more important than having a 50-50 schedule. And they come to realize that if the parents are continually fighting about whose way of parenting is better and one hour or day here and there, the child will not be well adjusted even if there is a 50-50 schedule. This is a perfect example of how getting what one wants without understanding the underlying needs and concerns can actually defeat one’s true purpose.

Some Questions to Get You Started

Use the list below to guide you through a range of concerns that often arise in a divorce. Are any of these of concern to you?  As you go through this process, you may think of additional areas of inquiry to define your core concerns. As with everything else in life you may not be able to fully address every concern you identify, but going through this process will help you know the things you most care about and you can prioritize those as you develop solutions.

Financial Needs During and After Divorce

  • Will I be able to afford normal, defined living expenses?
  • Will I have security for retirement?
  • Do I need to take time off to train for a new career?
  • Can I continue my present lifestyle?
  • How important is it to be able to give gifts to children or organizations?
  • Will I be able to stay home or spend time with children, parents or other significant people?
  • Do I hope to pursue artistic or spiritual endeavors?
  • Will I be able to pursue travel and other forms of pleasure?

Psychological, Emotional, and Spiritual Needs

  • Do I need recognition or appreciation for who I am or something I have done or contributed?
  • How important is it to me to feel included and valued?
  • Do I need a sense of community or belonging?
  • How important is it to have control over aspects of my life?
  • Do I need validation or approval from someone?
  • How can I protect my reputation?
  • How can we safeguard secrets and other shared personal information from friends, family and community?
  • How important is it to have a future relationship with a process of respectful communication and recognition of personal differences?

Repair of Past Harm

  • Do I feel that the relationship or my partner challenged my core competencies or contributed to feelings that I am unlovable, incompetent, not respected or left out?
  • Are there other ways I feel injured by events in the relationship?
  • Are there trust issues that are preventing me from moving forward?
  • If I feel there are issues that touch on my identity or feel like violations of something of importance to me, what words or deeds from the other person might help repair that damage?
  • How do I see my contribution to the problem/damage?
  • What words or deeds am I willing to engage in to complement the words or deeds I am asking the other person to engage in to repair damage?

Divorce Concerns Regarding Children

  • What will their lives be like?  What values are important to me in setting up a new structure for them?
  • Is it important to me that they love me most? Why?
  • How should we talk with them about the divorce and each other?
  • How important is it that we agree to the same rules concerning homework, television, exposure to adult like subjects as they mature?
  • What role should each of us play in the children’s lives?
  • How will we handle dating, introducing new significant others, remarrying?
  • How will we approach remarriage, treatment of the new spouse and step siblings, care of our child by someone other than their parent?
  • Are there dietary, health, academic or therapy issues that need to be managed?
  • What role will religion play in our children’s lives?
  • Do I have concerns about the children’s relationships with their friends, riding in the car with teenage drivers, curfew and other adolescent issues?
  • How do I see joint occasions in the future school events, bar mitzvahs, graduations, weddings?
  • Will we use caregivers for our children and how will we communicate with them?

Family and Community Relationship

  • Will we both maintain contact with friends we shared as a couple?
  • Do I want to maintain contact with in-laws?  How do I feel about my family maintaining contact with my former spouse?
  • How will I maintain relationships with religious institutions, members of our congregations, school personnel, and others who support the larger fabric of our family life?

Conclusion

The list of questions above is intended to get you started in discovering what is important to you. Once these interests become clear, you can begin to assign priorities for negotiation. Because there is generally a limit to the financial resources available it is important to prioritize financial concerns. Sometimes the psychological, emotional, and spiritual concerns are so significant that people are unable to move forward until they are addressed. It is not unusual to find that a person will trade satisfaction of these interests for financial resources. Because satisfaction of these non financial interests is free, you and your soon-to-be-former spouse have an unlimited opportunity to create an outcome with significant value for both of you. This is difficult to achieve if you are engaged in positional bargaining and have not identified your underlying interests.

Discovering and articulating your underlying interests can be challenging. It takes skills many of us do not practice routinely. It also takes some emotional courage to make yourself vulnerable by asking for what you want. An attorney with good skills in interest based bargaining can truly be of help to you. He or she can provide you with emotional support to voice your needs and desires and help you believe they are worthy of being met.

By taking the time to understand the benefits of interest based negotiation you can use a divorce negotiation as a learning experience. By using this process you might even be able to create a better relationship with your former spouse than you had before, which would be a great outcome for everyone involved, especially your children.

Positive Energy Works LLC

Carol Bailey, J.D., is a family law attorney in Seattle, Washington. Before founding her current practice, Carol Bailey and Associates Integrative Family Law, she worked as a court-appointed Guardian ad Litem, representing the interests of children in complex divorce and family law cases. Ms. Bailey is also the founder of Positive Energy Works, LLC, and speaks and writes frequently on collaborative approaches to communication and problem-solving.

Integrative Family Law takes a holistic approach to divorce.

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