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Bargaining Over Positions in Divorce Mediation
As part of our training as divorce mediators in New Jersey, we are given many books and articles to read in order to help us learn different techniques to help people through conflict. There is a classic book written by Roger Fisher and William Ury called "Getting to Yes: Negotiating Agreement Without Giving In" which teaches us the important concept of bargaining over positions versus interests. The authors define bargaining over positions as each party taking a side, arguing for it and then making concessions along the way to reach a compromise. The example they give is that of a customer and the owner of an antique store haggling over the price of a vase in which one starts with a high price and one with a low price each moving towards the middle until they get stuck where neither of them wants to budge anymore and no one is happy. What does this have to do with divorce mediation? I'm glad you asked.
When we work with couples, we look to find out what the root of their requests are. That is, what are their interests. Is it that one spouse really wants $1000 a month in alimony/spousal support or are they really just concerned they won't have enough to live? Is that toaster really all that important to the other spouse or is it that they feel they're being taken advantage of and this is their "line in the sand?" Taking the time to get to the real reasons behind people's concerns is one of the real benefits of mediation and something we're committed to each and every session we mediate. What's wrong with bargaining over positions? Isn't that what some would call "win-win?" Let me ask you something: have you ever spoken to anyone who considered their divorce a "win?"
So what happens? If you're like most of us, you dig your heels in and refuse to budge, hanging on to a position that may or may not be what you want but it's your position and no one is going to move you from it. You become so committed to it that you worry if you give any more, you'll either be perceived as weak or not committed and that the other side will go on the attack. Sad to say, but not all divorces are as peaceful as many of those which are mediated and I guess anyone involved in such a proceeding doesn't want to give the proverbial inch as they are worried they will be asked for a yard. You wind up appearing stubborn and in the end, probably not getting what you wanted anyway.
Mediation tries to keep the peace, recognize that people can disagree over individual issues but still reach an agreement that works for both of them on the whole and that it's OK to change your minds in such an emotional time. By keeping the lines of communication open and finding common interests such as your children, divorce mediation truly is the smarter way to divorce.
If the divorce is being filed under one of the seven fault grounds (including extreme cruelty, adultery, abandonment, substance or alcohol addiction, institutionalization, deviant sexual conduct and incarceration), the 18 month separation period, required for a no-fault divorce, is waived. However, each ground for divorce has its own stipulations.
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