There are two basic negotiating strategies used in family law: adversarial (positional) or collaborative (interest-based). The goal in adversarial bargaining is to win at all costs. Each party wants more of everything. Adversarial negotiation is based on power; each side attempts to undermine the other’s confidence so they can win. Adversarial negotiation involves taking positions and sticking to them while trying to intimidate the other side. However, adversarial bargaining often produces an impasse. An example of adversarial positional bargaining is when one party announces, “I want the house,” and sticks to this position even when their financial position requires them to sell the house and split the proceeds.
Collaborative negotiation is the opposite of adversarial bargaining because collaborative negotiators seek a settlement that meets both parties’ goals and interests if possible. For example, an interest-based goal involving the house might be to keep the children in the same school district so they can maintain contact with their friends. By concentrating on the interest involved, the parties are able to recognize that the goal can be met through different living arrangements, such as awarding the family home to the custodial parent, selling the family home and renting an apartment, or trading for a smaller house. The collaborative process works better if the parties are able to trust each other, but trust is often in short supply during a difficult divorce. Trust is the foundation of collaborative bargaining. Parties who have at least a modicum of trust are more likely to share information, communicate honestly, and engage in good-faith negotiation. There are several ways to develop and maintain trust during the collaborative process. First, the parties should make eye contact and listen actively during joint meetings. Active listening involves acknowledging the other party’s feelings, listening with an open mind, and respecting the other party’s positions. It helps if both parties can stay calm in the face of strong emotions and allow the other person to express their feelings without becoming defensive. Also, expressing honest appreciation for the other party’s efforts to compromise can help build trust. Collaborative negotiators see the other party as a problem-solving partner rather than an adversary. They understand each party has different priorities and they try to meet everyone’s goals by seeking creative settlement solutions. Collaborative negotiators maintain cooperation by being courteous and by ensuring that the negotiation is fair.
Collaborative negotiators make concessions to build trust and expect similar concessions in return. They make modest concessions in the beginning, adjust them to reflect concessions from the other side, and make smaller concessions as they approach agreement. Making a small concession after the other side makes a generous offer can damage trust and generate anger. If the other side makes a large concession, follow with one of similar size to encourage progress. On the other hand, if the other side makes small concessions, move in similar small steps toward a settlement. Never make a large concession near the end of settlement discussions, because the other side will believe you are too eager to settle and may become entrenched. An important goal of collaborative negotiation is to discover a zone of agreement that meets the important goals and interests of each party. The parties can’t reach a settlement unless there are acceptable options within a zone of agreement. If there is no zone of agreement, the parties must change their valuation of existing options or generate new ones until they discover a settlement option within the agreement zone.
