Divorce and the Three Ps of Negotiation

Mediation Skills that Favor Success

by Michael Heath

Couples who decide to end their marriage without retaining matrimonial lawyers have chosen to negotiate for themselves. Mediators and collaborative attorneys assist in guiding the process but never advocate for either spouse. Although holding on to control of the process is a big benefit of a mediated divorce, knowing how to negotiate properly is necessary to ensuring the best outcomes.

A Systematic Approach to Negotiation

In his book titled The Power of Nice: How to Negotiate So That Everyone Wins—Especially You! Ronald M. Shapiro highlights the importance of having a systematic approach to negotiation. This explains why he dedicates four chapters to the Three Ps of Negotiation: Prepare, Probe, and Propose. While his writing is not focused directly on divorce negotiation, the approach can certainly be applied to couples who are ending their marriages through mediation. Spouses should never go into mediation sessions with some fuzzy ideas of what they want and how they may get it. Showing up to the discussions ready and knowledgeable is integral to controlling mediation costs, narrowing the length of proceedings, and keeping emotions in check.

Prepare

Everyone has heard the saying “fail to plan, plan to fail.” There is a lot of truth to that statement when it comes to negotiation. Each spouse should decide what they want and make a list. Then each needs to do their homework. If a spouse wants to buy the other out of the marital home, they need to know things like the value of the dwelling and whether it is affordable or even if a new mortgage is obtainable.

Since mediation and collaborative divorce are cooperative efforts, the couple is tasked with working together. Both should take responsibility for gathering information so that each is invested in the process. It has happened many times that a break in mediation sessions occurred to obtain bank balances or investment information, etc. Each should share responsibility in obtaining documents and check to make sure that all is in order before discussions begin.

Probe

Spouses may believe that after so many years of marriage they already know what their other half is thinking. A good negotiator does not assume anything like that. Questions must be asked before listening carefully. The first thing learned may be their position. Digging a little deeper gets to the underlining interests, desires, concerns, and fears. Those are the bits of information that lubricate the conversation. Listening and learning is essential to good negotiating.

Propose

The next step is to propose. Ronald M. Shapiro recommends allowing the other side to offer a proposal first since their offer may be even better than what is desired. If a spouse hesitates in making an offer, then asking more questions before summarizing the answers can lead to a proposal. It is never a good idea to accept an offer too quickly. It is better to think about it so that the other side does not believe they gave away too much. That could lead to the other side wanting to walk the offer back. If the proposal sounds enticing an effort should be made to make sure nothing was missed before accepting.

Mediation for Success

Negotiating through divorce mediation is never about out maneuvering the other spouse; it is instead an effort to arrive at win-win results. Such outcomes are achievable. When couples understand the Three Ps of Negotiation, the chance of success increases exponentially.