Now I need to be upfront- I love negotiating! It is the part of my job that I really enjoy. And when I am not at work I thoroughly enjoy using my skills on my toddler! Now she is a challenge- but I have learned that if I can out negotiate the toddler I can pretty much take on anything the legal world of divorce can throw my way! This long weekend, after many a negotiation with the toddler, I have been reminded of the similarities (at times anyway) between my job as a lawyer and my role as a parent. And so, this week’s thoughts will of course tool you up for a successful negotiation with your former partner and any toddler/child (but do note- I am not certain these techniques will work on teenagers…)
When it comes to surviving the legal aspects of your divorce you will need to be ready to negotiate. And whilst it is a skill most of us use every day, the challenge during divorce is that you will be suffering grief. When our brains experience such high levels of emotion they in essence shut down the creative parts, the areas of higher reasoning, and we turn back into our primitive selves. This is why negotiating with your former partner is so challenging-there is a good chance you are both suffering significant stress and as such both making decisions with the emotional part of your brain, without any help from the much wiser parts of your brain. So whilst in any other situation you may be an expert negotiator, when it comes to your divorce it is a good time to pause and take the time to get a plan- this is the best way to kick your brain out of primitive mode and back into creative and problem solving mode.
1. Avoid positional bargaining- the old ‘Do it because I said so!’
Now my toddler is an expert negotiator (as most toddler’s are!) And I can assure you there are many similarities in the approach taken by my 3 year old and a common legal negotiator- both are often very skilled in the art of ‘positional bargaining’. Now if you are a parent you will be very familiar with this form of negotiation- It involves you (or your toddler!) taking a position and simply demanding that the other person move to it. So the most common example of this in our home starts with me saying ‘Please put your shoes on’ which is generally answered with a big fat ‘No’! And so then the negotiation begins…. and continues… and goes on….. until somehow I manage to get her shoes on! All the while she is doing all she can to avoid putting on her shoes!
In my day job I often experience this style of negotiation with separating couples- someone makes a proposal to resolve let’s say a property division and the other person says ‘No’! And then many days/ weeks/ months are spent (tediously through legal letters, but that is a complaint for another day…) with each party trying to get the other as close as they can to their position.
Positional bargaining has its place with small children but I encourage you to avoid it at all costs during any divorce negotiation.
2. Embrace the art of compromise
Recently my toddler has also started to ‘upskill’ when it comes to her own negotiation skills! She is of course learning from a master and I will soon need to be careful how many of my tips I give away. In the last few weeks she has taken to negotiate using compromise! Now, when I say ‘no’ to something you can see her little brain ticking over as she things about her next move.
The other night I saw a perfect example of this, bedtime in our house is rarely fun! She hates the idea of going to sleep and the act of getting her into bed and to sleep can take hours! She likes to have a bottle to fall asleep and the trick is in the timing, as if she has not fallen off to sleep before finishing that bottle, she will sit bolt upright and demand ‘More Bottle!’ Now my husband and I say ‘No, go to sleep!’ and then it begins….. well usually, but the other night she surprised us as she paused and said ‘How about ½ a bottle mum?’ Now I will be honest and say the first time I heard this I was seriously impressed! She, at the tender age of 3 had worked out the notion of compromise! She had come to understand that ½ a bottle was better than none at all!
Whilst I cannot usually predict the future, when it comes to negotiating a Divorce settlement I can predict with absolute certainty one thing- to find any sort of lasting solution, you will have to compromise in some way. And perhaps unsurprisingly, the sooner you can come to grips with this, the better chance you have of finding a settlement and most importantly, a settlement that you can live with.
Where I see so many of us go wrong is that a lot of the time we associate ‘compromise’ with ‘losing’ or ‘giving in’. I encourage you to instead consider ‘compromise’ as a true creative art form. I consider compromise as the ability to really look deep into what matters for my clients (and their former spouses) in any negotiation and craft solutions that actually meet their needs. If I can work out what big ticket items are the most important and which items are perhaps ‘nice to have’ but not essential I can quickly craft quirky solutions often involving ‘trades’. I encourage my clients to have at least three possible solutions to any problem up their sleeves all of which they could live with- this enables them to be creative and compromise in different ways that don’t have them feeling like they are ‘giving in’ rather, they are guiding the negotiation using compromise to find solutions.
3. Focus on what really matters
Toddlers are great at working out what is really important to you- they ask the magic question ‘Why?’ in fact they ask it over and over and over again until you end up saying ‘Just because it is!’ But the toddler curiosity for the question ‘Why’ is exactly the tool you need to work out what really matters to you and your former spouse when it comes to your divorce negotiation.
If you have worked with me you will know my secret questions that I use, along with a lot of ‘why’s’ to work out what really matters to my clients! When I start work with anyone I ask a simple (and no longer secret) question “I want you to imagine we are a year down the track and life for you is really good, almost perfect- tell me what that would look like for you… for your children… for your former partner?”
When I get an answer to these questions, I can immediately learn what really matters. You see when you get stuck in legal negotiations during divorce there is a good chance that the focus will be on all sorts of things- most of which don’t really matter to you at the end of the day.
Unfortunately, whether you like living in a particular suburb, aim to raise your children in a certain way, hope for some financial independence or have plans to travel the world in your retirement are not things that factor heavily, if at all, in the various sections of the Family Law Act. But the thing is, the stuff that really matters is the stuff that drives us and that is what can win or lose a settlement.
So unsurprisingly, the key to a successful divorce negotiation has little to do with legal entitlements and ‘the law’ and so much more to do with what actually matters to the two people involved. If you can identify what actually matters to your former partner, and construct proposals that meet those needs or goals, you will soon find your way to a settlement. In doing this, you will of course be focusing on what really matters to you too and constructing your proposals by keeping the art of compromise front of mind.
4. Remember there are many ways to be right
And finally, remember that terrible and yet so helpful saying ‘there is never only one way to skin a cat!’ I always enter a negotiation with at least three good solutions or settlement proposals up my sleeve- there is never only one right answer and having a selection of options available to you will keep you in the driver’s seat in your negotiation. Don’t allow yourself to stop at only one solution- there is always another way if you can allow the creative part of your brain to take over the decision making. (This is helpful with toddlers too I find- distract them with a new solution and before you know it there shoes are on!)
When it comes to negotiating with your former partner, it will be anything but easy but finding a solution during your divorce that you have both come to together, that enables you each to move on and most importantly minimises cost- both financial and emotional- is invaluable. Take your time, focus on what really matters to you and be ready to compromise. Try and be optimistic too, I appreciate that sounds so trite, but your divorce really can be a new beginning- just because your past did not turn out the way you hoped doesn’t mean that your future cannot be better than you imagined.
