Emotional Issues and Negotiating Skills

By Carol A. Butler (Ph.D.) and Dolores D. Walker (MSW, JD)

Marriage was an organizing factor in your lives. You and your spouse together made many decisions in particular ways because you were married and shared certain values and expectations. Now those expectations have been turned upside down. You will be negotiating a separation agreement at an emotionally difficult point in your life, and you will be required to make decisions without your accustomed underlying rationale. This can be frustrating and confusing.

You or your spouse may find that feelings of anxiety over the potential loss of financial security, extended family, home, and friends have a quality more like childhood panic than adult concern, because these losses represent a temporary loss of the “self” with which you have become comfortable. There may be feelings of betrayal, rage, or helplessness. If the two of you become involved in an adversarial process, these feelings may be intensified because you’ll be dependent on your lawyers’ strategizing.

A mediator understands this state of mind and will keep the negotiations non-confrontational and structured. With your mediator’s assistance, you will both be able to speak for yourselves and plan your individual futures.

The negotiation techniques we discuss will be helpful with this process. We will answer questions about how to overcome emotions that interfere with negotiations: how to make trade-offs so that you get what you really want; how to get a reluctant spouse to mediate; how to overcome impasses; and how to develop better ways to communicate so that you can have future discussions concerning such issues as parenting arrangements with less conflict.

Because you are negotiating something very complex and personal, the stakes are higher than if you were negotiating a business matter. Your relationship has probably been quite emotional, both affectionate and angry, and facing separation may elicit some painful and perhaps unanticipated responses from both of you. If you have children, you cannot walk away and never see each other again. You will be negotiating the terms of an ongoing relationship that will affect both you and your children for many years to come. Under these circumstances a win/lose approach cannot work.

Negotiation is about problem solving. There are no absolute rules, but there are techniques to be used thoughtfully.

You are more familiar with the process of resolving conflicts through negotiation and compromise than you may think. You have negotiated with friends and family about all sorts of choices affecting more than one person. Think about what you have learned about yourself as a negotiator in your prior experiences resolving such common conflicts as scheduling, meals, curfews, hairstyles, holidays.These are some of the basic ideas to keep in mind when you negotiate.

Before mediation sessions begin:

  • Do your homework in advance so that you are prepared with information and questions about the issues that concern you.
  • Think about what’s really important to you, and think about trade-offs. Don’t get greedy, but don’t fail to recognize if you’re in a poor bargaining position on some issues. Keep in mind that it is unlikely you will get everything you want, whether you use mediation or litigation. If you remember this, you’ll have a much easier time considering alternative proposals.
  • Prioritize what’s important to you. Look at the whole picture. Don’t limit yourself to one issue. Be aware of what you value most.
  • Assess and strategize, anticipating what your spouse may want or must have.
  • Plan some concession points. You may be willing to give up money for some other benefit, or some other benefit for money.

During mediation sessions:

  • Be patient. Negotiation is a process that takes time.
  • Focus on the future. Don’t dwell on past issues that won’t continue once you’re divorced.
  • Begin with a reasonable position. If you’re unreasonable at outset, you risk an impasse.
  • Stay with the agenda. Don’t get stuck on irrelevant issues.
  • Don’t formulate a reply without listening carefully. Take notes. Be certain you understand what is said. Clarify by asking questions of both the mediator and your spouse.
  • Don’t be confrontational, and avoid verbal put-downs. Focus on the problem instead of on who’s to blame.
  • Do not escalate. If your spouse attacks you verbally, don’t take the bait. Stay focused on your future goals and on the problems that stand in the way.
  • Avoid treating everything as equally important. Probably, the antique clock and the pension plan are not of equal value to you.
  • Generate solutions. When you say no, try to suggest another solution. You don’t have to agree to anything that you think is unfair, but you should consider every proposal seriously — and seriously consider how it can be modified. Is there something else that might make the proposal more appealing to you?
  • Review any documents of information provided during mediation. Be certain they are clear and complete.

Remember, mediation goes through stages. Often when your easier issues are settled and the end is in sight, there will be more motivation to compromise. As mediation sessions end, continue your homework. Review the proposed agreement, making sure that you have read it carefully and that you understand it.

Be certain that your final agreement is clear and enforceable. An agreement to negotiate about an issue at a future date is not enforceable unless there are clear guidelines about who will make the final decision and what criteria will be used.

We can understand that winning it all — particularly if you feel you are in the right — is very satisfying. Winning feels good.

The problem is, decisions made by you and your spouse in mediation or by a judge seldom give everything to one person and nothing to the other. So, even if you’re in the right, if you are unwilling to compromise, you run the risk of losing what is most important to you, and probably at great cost in terms of time, money, and emotion.   Instead of worrying about compromises, think about options. How many different ways can you have it your way? What don’t you really want or need that you can consider trading for what you really must have? And most important, think about what you really want.

Dolores worked with one couple in mediation where the father insisted on being the “school-night parent” (the one with whom the child spent school nights) and was prepared to put up quite a fight to get that access. But when Dolores asked exactly what hours he wanted to spend with his daughter, it turned out he had only two weeknights available, and one of those evenings he was only available after 7 p.m. Once the father explored the options with Dolores, he decided it was more important to have more quality time than busy evenings with his daughter, and he agreed to lengthy weekend visits instead.

We need to look closely at the reasons you can’t agree. Are there emotional issues? Is there a fear of committing to a different way of doing things? Are you concerned that you may waive some legal rights? Or do you lack sufficient information? People often have a period of extreme emotional upset when a marriage is ending. Severe anxiety and depression are not abnormal at this time. If you are at a stalemate because of an emotional reaction, a few sessions with a therapist may help you to clarify and moderate your feelings so that you can think more objectively.

Are you afraid to commit to a change that might not work out? Are you afraid to formalize changes in your relationship with your children? If so, consider experimenting. Try something for a month or two, and agree that you’ll do something totally different if the trial plan doesn’t work out. For example, try out a parenting plan and then, in a mediation session, make adjustments that are an outgrowth of having some experience with shared parenting.

Sometimes people are afraid they will permanently waive their legal rights if they make a decision, and as a consequence they become immobilized. In such a situation, you might try to negotiate a temporary arrangement, with a clear understanding that this will not set a precedent for the future.

In one of Dolores’s cases, although the husband wanted to move out, he was afraid to do so for fear that he would be accused of abandonment and that he would lose any right to the house and to shared custody. The wife agreed to sign a temporary agreement stating that his move would not waive any of his rights.

Sometimes lack of sufficient information creates the impasse. Often the mediator can provide the needed information. If not, the mediator may recommend an opinion from someone both parties agree upon as an expert. This expert might be a child psychologist, planner, a neutral attorney, or an appraiser. And you both agree in advance that the expert’s opinion will either be simply advisory (you will take it into consideration) or that it will be binding (you agree to accept the expert opinion to break the impasse).

The mediator’s role is to help the couple think through their respective positions regarding each issue. We help to generate options, and we take an active role in eliminating an impasse if it occurs.

Do both of you find it difficult? If so, you may want to try couples counseling before proceeding with divorce. However, if only one of you is interested in counseling, then it’s probably time to come to terms with the separation.

There’s often ambivalence about saying goodbye. This is usually a factor when couples in mediation have difficulty agreeing on minor issues, seem to connect intensely through anger, or, when the agreement is almost complete, seek to change some of the terms.

During the process of mediating the separation agreement, your fears will begin to subside as you learn to negotiate constructively and to resist your impulses to engage in emotional arguments. Mediation will restore a sense of your own power and autonomy. You will learn not only to assert your needs but to plan for and develop control over your future.

Being unable to agree is probably a major reason you’re planning to separate or divorce. Throughout your marriage, you may have been disagreeing openly and feeling hostile to each other, or you may have been holding back your hostility to avoid a confrontation, but you were probably having those disagreements silently in your own mind. If communication has broken down but you want to make a settlement, you will find mediation extremely helpful. The mediator will help you communicate about the necessary issues and will stop both of you from rehashing past disagreements. She will keep you focused on your individual and separate future plans and will strongly encourage you to let go of the argumentative habits that didn’t work in the past.

If you feel overpowered by your spouse, you need to really examine why your spouse always wins arguments with you. Does your spouse win because you’re uncomfortable arguing?

  • Do you feel guilty?
  • Are you afraid of confrontation?
  • Are you afraid of losing control? Your mediator’s role is to keep the discussions calm, to help you both assert yourselves without losing control. Remember, the purpose of divorce mediation is to negotiate a settlement of the practical issues, not to win an argument or to place blame.  Are you afraid things will get violent?
  • Does your spouse threaten you? Don’t agree to mediate under these circumstances. The only exception is in some court-ordered mediation programs in which they have special protective arrangements (security guards, separate waiting rooms, controlled departures, etc.) for couples where violence is an issue. This is obviously not possible in a private mediator’s office, which is why we don’t recommend it.
  • Do you stop arguing because you believe your spouse knows more about an issue?

Here, mediation can be helpful. Your mediator will assist you with negotiation techniques and with information. Mediators have many ways to empower the weaker party at any point in a negotiation, and remember, each couple relates differently on different topics. You may feel less knowledgeable than your spouse in some areas, but in others, you’ll feel confident and your spouse will be the one who is unsure.

Your mediator will remain in control of the process and keep the focus on the future. Clarification will be encouraged, confrontation discouraged. Mediators support the expression of ideas, but they don’t permit disruptive behavior.

In many families –and indeed in many cultures –marriage is a joining of families, and there is a strong tradition of family involvement even before the marriage. In that context, it isn’t surprising that families often are very involved if the marriage is in trouble. It may be appropriate to discuss the point of view of the involved family members at the beginning of mediation so that their feelings are clear to the mediator. If close friends play an important role in your spouse’s life, it may be necessary to allow your spouse to state their viewpoints once, and then establish some ground rules about their involvement.

An attempt can be made to experiment with realistic limits about with whom you may discuss the separation while you are engaged in the mediation process, how frequently you may speak with them, and what topics are off limits for the moment. Both you and your spouse probably suffer additional stress as a result of the confusion and misunderstandings caused by all that cross-talk, and couples often find that these limits are a relief.

The depression may be in anticipation of the losses you fear, and you may be grieving.

The end of your marriage, and the possible loss of significant relationships, familiar surroundings, and financial security often lead to feelings of sadness and worthlessness. Insomnia and an inability to concentrate are not unusual in this period.

If you have had other significant losses earlier in life, or if you have a history of depression, your upcoming divorce may trigger a deeper, more serious reaction. It is important that you see a therapist to determine the extent of your depression and to obtain appropriate help.

It helps to know that feeling very sad about divorce is normal. There are different phases, or stages, that people who are grieving commonly pass through. Elisabeth KŸbler-Ross described these stages as shock and denial, anger, bargaining, depression, and acceptance (in that order). Try thinking about your recent experience in terms of where you have been and where you are in these stages. Remember, it takes time to work your way through these phases, but it doesn’t take forever.

Some of your sadness may be linked to anxiety about the future. You will be helped by working through the details of your divorce in a calm, supportive setting where you can plan for the future. While some sadness may remain, you will experience relief as each issue falls into place, and you will gradually be able to accept the changes that your divorce will bring.

Are these feelings that you had during the marriage, or are they directly related to the decision to divorce?

  • Have you caught your spouse in lies throughout the marriage? If your spouse has been dishonest during the marriage, you will undoubtedly convey that to your mediator early in the process so that she will be alert to any possible deception might affect the settlement.
  • Is it only now that you are suspicious? If you express doubt about anything your spouse says with regard to the settlement, the mediator can make sure that all the facts are fully disclosed so that the settlement will be fair. If full disclosure is not made, the mediation cannot proceed.

There is another possibility: the divorce process itself can bring on feelings of mistrust, suspicion, betrayal, and even paranoia. And the friends and relatives you turn to for advice may increase your fears; they may want to be protective, give advice, or tell war stories about divorce. If you’ve visited any litigators, they may have increased your suspiciousness because it’s their duty to tell you the worst that can happen and to formulate a plan of attack.

In contrast, mediation is helpful in building trust. Your mediator will be emotionally supportive and will require that all necessary information be shared. Since you will be in the room together throughout the mediation, you can observe your spouse’s reactions to all the issues. This atmosphere encourages candid discussion, and you will find that it decreases your feelings of distrust.

If your spouse has recently been physically abusive or has frequently been intimidating or threatening, we would generally recommend private mediation.

Has there been physical abuse? We feel strongly that if there is a recent history of abuse of you or of your children, the relationship is too threatening for you to be able to negotiate effectively –even with the help of a mediator. You may be too fearful to be appropriately assertive about what you want in the mediation session, and you may be in danger after the session if your spouse has been upset in the session.

Has the abuse been verbal or emotional? If the abuse has been exclusively verbal or emotional, here are some questions you should ask yourself to help decide if mediation is possible:

  • Has my spouse frequently tried to intimidate me with insults, accusations, or threats of violence? Even though things have never gotten physical, does this behavior make discussion impossible? Does it make me feel powerless?
  • Am I afraid my spouse will threaten me after each session? Will I be afraid to speak up in the session, even with the mediator’s help?
  • Was my spouse’s abusive behavior linked to alcohol or drug abuse? If so, is my spouse in recovery? For how long? Is there a strong enough support system in place so that a relapse is unlikely?

If you are fearful, it is probably better that you not deal directly with your spouse. We suggest you hire a lawyer to represent you on your behalf.

This article has been edited and excerpted from The Divorce Mediation Answer Book by Carol A. Butler and Dolores D. Walker (Kodansha America, $16). In this accessible question-and-answer guide, two practicing experts offer sound advice about the divorce mediation process. You’ll find answers to questions such as: what are the advantages of mediation; how do we find a mediator; what if we don’t agree with the mediator’s recommendation; and what are the best ways to help our children survive the process? There’s also a terrific resource section that lists mediators around the country as well as other sources of valuable information to help you save time, money, and emotional energy. Available at better bookstores, or by calling (800) 451-7556.

Please visit the websites of the authors of this article:

Dr. Carol A. Butler, PhD  www.SeeTheOtherSide.com

Ms. Dolores D. Walker, MSW, JD

Reprinted with permission, April, 2005.