A previous post outlined 3 negotiation principles applicable to divorce mediation. One of these, interest-based negotiation, was popularized by Roger Fisher and William Ury in their classic book “Getting to Yes: Negotiating Agreement Without Giving in.”
Interest-based Negotiation Steps
Interest-based negotiation is a whole approach to conflict resolution which emphasizes discovering and addressing the real concerns of each party. Applied to divorce mediation, it has several steps:
Defining the issues;
Identifying underlying interests or concerns for each spouse for each issue;
Prioritizing these interests for each spouse;
Developing options to address the interests;
Combining the options into proposals for resolution;
Using objective criteria where possible to evaluate the options.
The first step is to define the issues that will be discussed. Rather than immediately launching into thoughts, feelings and ideas, it’s helpful to clarify what you are trying to resolve. For example, the issue could be to develop a co-parenting plan for the holidays and other special days of the year.
The next step is to find out what things are most important to each parent. For one parent it might include having time with the children on religious holidays. For another it might include being able to arrange get-togethers with extended family such as grandparents. This step allows the rest of the discussion to proceed at the deeper level of seeing how/if what’s important to each spouse can be satisfied.
Each spouse will of course often have several interests and it may be helpful to prioritize them. For example, one parent may really want to have time with the children on every holiday but may place a higher priority on the children having quality holiday time with both parents.
An idea generating session can follow in which possibilities are encouraged and developed to try to meet both spouses’ interests. The most attractive ideas are then combined into proposals that seem to be potential solutions to the issue. In the parenting plan example, this may often include trade-offs, where say on key holidays like Thanksgiving each parent may have the children in alternate years.
When possible and appropriate, it’s good to evaluate the options with objective criteria. The aim is to try to ensure that the options and proposals are well founded. For the holiday parenting plan, the couple may have agreed up front to share total holiday time with the children fairly equally. If so, they can add up the total holiday days with each parent over the course of a year as a way to evaluate different possible holiday time-sharing solutions.
Using objective criteria is more important in the financial negotiations. There are normally ways to determine an objective value for each asset and debt, such as Kelly Blue Book, real estate appraisals, and 401(k) plan statements. Doing so helps each spouse be clear and confident as regards the real financial basis and implications of each proposal.
The steps of interest-based negotiation don’t need to be done strictly in sequence for each issue. The process under the guidance of a good mediator is usually more organic and efficient. But interest-based negotiation is a time-tested approach for coming to well-informed, creative decisions and solutions that address what’s of greatest importance to each spouse.