Approaches to Negotiation in Divorce Mediation

Spouses can use both positional negotiation and interest-based negotiation in divorce mediation

There are two general approaches to negotiation. One is called “positional negotiation,” and the other is called “interest-based” negotiation. People may use both interest-based and positional negotiation approaches at different times in a mediation; they typically don’t use just one or the other.  In interest-based negotiation, the parties describe their interests and look for options satisfying the interests of both parties. In positional negotiation, both sides try to get the best result for themselves by exchanging offers.

In divorce mediation, some spouses adopt positional bargaining as their negotiation strategy because they are familiar with it as a traditional way to negotiate. On the other hand, it risks angering the other side and losing the chance to reach good, viable, satisfying agreements for both spouses. Interest-based negotiation provides the chance to reach the best possible agreement. However, some people are concerned that the other side would take advantage of it if they are too open to expressing their interests. Because your relationship with your spouse is personal, vs. a business relationship, and if you have children, you may wish to foster a cooperative, amicable relationship for the future, one must consider the following question:  If you can reach a good agreement in mediation, how will the agreement affect your relationship with the other party after the dispute is resolved?

The standard we use in our office is to guide the family to think in terms of options for resolution. The bible for negotiation remains William Ury and his numerous books on the topic. What is your WATNA and BATNA: if you don’t reach an agreement, what is most likely to happen?  What is your best possible (realistic) alternative if you don’t reach an agreement? What is your worst possible (realistic) alternative? In most divorce situations, this means developing a clear understanding of the strengths and the weaknesses of your position before the divorce mediation negotiation session even begins.  How would you know if a possible agreement is better than the most likely alternatives? As you compare possible agreements with your alternatives, consider the costs, time, and effort required, the total effect on your relationships. 

In divorce mediation, spouses can use both positional and interest-based negotiation to engage in discussions. These discussions ideally will improve communication between the parties, develop strong parenting plans, designed with family needs in mind, ensure the best interests of the children are always met, and support, teach and foster future collaborative problem-solving.