Negotiating

Learning some basic negotiation skills in advance of mediation can go a long way in preparing yourself for the process.

Is negotiation a competitive or cooperative process?  It can be either, depending on the type of negotiation.  If you're buying a used car, you'd probably employ a competitive approach between yourself and the salesman.  If you're negotiating over visitation, you may be better off trying a cooperative approach.

In family mediation, it's often better for everyone to strive for cooperative negotiation (assuming everyone is safe and there are no addictions and/or mental health impediments).  So what does this mean and how do you do it?

A cooperative negotiation takes into consideration everyone's needs and interests as identified by each individual while striving toward a solution that meets as many of those needs and interests as possible. 

Needs and interests aren't the big position that you take when you're trying to play hardball.  Instead, they're the reasons why something in important to you.  Some examples may include: respect, acknowledgment, time, rest.  Everyone has reasons why they ask for things like custody or visitation or the house or the car or 50% of the 401K.  It's important to understand WHY these things are important because often times our reasons for wanting things are different than the other person's reason for wanting it and it's often possible to come up with a solution that satisfies everyone.  In other words, there should be no loser in the negotiation, just two or more winners.  That takes work and a lot of communication, but a good mediator can help you with this.  You can also read about this in a great negotiation book called "Getting to Yes" by Fisher and Ury.

So, before you begin to negotiate, you should write down the answers to these questions:

  1. What do I need?
  2. Why are my needs and interests important?
  3. What does the other person need?
  4. Why are their needs and interests important?
  5. What are some possible solutions that would meet both of our needs?
  6. What items are a deal breaker?  In other words, what are my limitations?  When would I end negotiation and choose another process?
  7. What options do I have if I don't reach an agreement with the other person in mediation?  Court?  What are my chances of winning/losing with a judge?  Are there risks involved in going to court?
These can be difficult questions to answer, but it's important that you understand why you want certain things so you can explain them to the other person.  It's also good to be able to anticipate why they want the things they want so you can begin to generate some possible solutions that might work for both of you.

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