California Info

California Divorce Start Your Divorce Find Professionals California Articles Divorce Facts Divorce Grounds Residency Divorce Laws Mediation/Counseling Divorce Process Legal Separation Annulments Property Division Alimony Child Custody Child Support Divorce Forms Process Service Grandparent Rights Forum California Products Divorce by County

California Articles

Agreements Attorney Relationship Custody & Visitation Child Support Collaborative Law Counseling Divorce/General Domestic Abuse Domestic Partnership Financial Planning Foreign Divorce Mediation Parenting Property Division Spousal Support SEE ALL

Info Categories

Contemplating Divorce Children & Divorce Divorce, Dollars & Debt Divorce Laws Divorce Process Divorce Negotiation SEE ALL

More Information

Articles Checklists Research Center Cases of Interest Dictionary Encyclopedia Encyclopedia (pop-up) Blogs

For Professionals

Advertise With Us Free Network Page Join Our Network Submit Articles Sign In

Network Sites

California Divorce Support California Divorce Online

Peeling the Orange - Negotiations for an Amicable Divorce

In traditional haggling ("position-based" bargaining), the parties begin by stating their respective positions. As negotiations progress, the parties give ground only gradually, while trying to wear down the other side with hard bargaining tactics, e.g., threatening to walk out. If an agreement is reached at all, it will be the product of concessions under pressure, and the experience may poison the ongoing relationship between the parties.

A different approach is "interest-based" bargaining, where the parties, instead of taking and defending extreme positions, sit side-by-side and list the issues to be decided. Then they try to work together to explore creative ways to resolve the listed issues. An illustration of the two methods is the dispute over an orange, between two parties named Alpha and Bravo.

Resolving the dispute over an Orange

In "position-based" bargaining, Alpha claims ownership of the orange, citing favorable arguments and facts [e.g., that Alpha paid for the orange, suggested buying the orange, etc.]. Bravo cites contrary arguments and facts [e.g., Bravo selected the orange, stored the orange, etc.]. Each party will try to discredit the other party's arguments, if not the other party's credibility.

The available alternatives for resolution by position-based bargaining are limited:

  • one or the other party gets the entire orange.
  • the orange is divided between the parties 50-50, 60-40, or in some other proportion.
  • unable to reach an agreement, the parties go to a judge or arbitrator, and the parties reiterate their arguments and attempt to discredit the other party even more vigorously than before. The judge/arbitrator decides on either alternative (1) or alternative (2).

Consequently, one party, and maybe both parties, are dissatisfied, and their ongoing relationship has been damaged by the pressure tactics employed during the process

In "Interest-based" bargaining, Alpha and Bravo sit side-by-side and list the aspects and components of the orange, and then brainstorm to come up with ideas. Maybe it turns out that Alpha is primarily interested in the orange rind, to make a cake, while Bravo wants the juice of the orange, and the seeds may be useful to one or both and therefore are divided accordingly. By proceeding in this way, an agreement can be reached by which both parties get most of what they want, and their relationship is undamaged.

Comparing the Harvard Project to Mediation Divorce Procedures

Interest-based negotiation was developed by the Harvard Project on Negotiation and popularized in the 1981 best-selling book [which is still in print and well worth reading] "Getting to Yes: Negotiating Agreement Without Giving In", by Roger Fisher and William Ury, Penguin Books.

The Harvard Project model aims to preserve relationships, and produce a "wise"agreement [an agreement that meets legitimate concerns, resolves conflicts, is durable, and is obtained at a minimal cost]. Comparing some of the Harvard Project concepts to mediation of a divorce might look like the following.

Harvard Project: "Deal directly with the people problem"

  • acknowledge the emotional part of divorce, allowing opportunities for the parties to vent, e.g., in separate sessions
  • recognize that one of the spouses may need some time to go by before finalizing the agreement

Harvard Project: "Focus on interests, not positions"

  • begins the discussion not by taking positions, but by listing the underlying issues

An example might be if one spouse says "I want the house," the mediator might recommend listing all of the issues underlying that position, such as:

  • keeping the family home for the kids' sake
  • maintaining the kids' friendships with neighborhood kids
  • attending the neighborhood school
  • living within walking distance of the kids' school
  • having a safe neighborhood
  • having friendly neighbors
  • dividing community property when most of it is tied up in the house equity
  • dealing with sentimental attachment to the house, family memories

Harvard Project: "Develop multiple options"

Continuing the above example, the spouses could then discuss these and other underlying issues, to decide whether to sell the house and move to two smaller homes in the same area, or for one spouse to keep the house for a specified period, or to keep it indefinitely, or some other resolution. The result would depend on what issues are most important to the spouses, and what practical ways can be worked out to best serve those interests.

Harvard Project: "Gather and organize information"

  • both parties make required disclosure of income and expense [Judicial Council Form FL-150] and assets and debts [Judicial Council Forms FL-142/FL-160], and provide supporting documentation. Valuations, appraisals, etc. are obtained as needed.

Harvard Project: "Proceed independent of trust"

  • one spouse makes a proposal, the other spouse restates that proposal, and may make a counter proposal

Harvard Project: "Use independent criteria"

  • refer to law, fair market values, expert opinion for business valuation, appraisal of property, divorce financial planner reports for tax considerations and projections of future income and expenditures

Harvard Project: Produce a "wise agreement."

  • all interim tentative agreements are summarized. Then the Marital Settlement Agreement is prepared, reviewed by each spouse's attorney; and finalized. The final MSA is filed with other papers required for the court to enter judgment

Thus, following the above mediation divorce procedures will facilitate producing a "wise" Marital Settlement Agreement which resolves all the issues with a minimum of cost, delay, and rancor, and with a much better chance of keeping an amicable relationship for future cooperation.

Was this helpful? Like our site & let us know.

Related Articles

Start California Divorce Start Your California Online Divorce Today
Easy, Fast and Affordable with a 100% Guarantee.
California Divorce Find California Divorce Professionals in Your Area:
Join the Network
California Divorce Products, Services and Solutions California Divorce Products, Services and Solutions
California Divorce Resources to Help You Through the Process.
Online Parenting Class California Mandatory Online Parenting Class
Easy and convenient - complete at your own pace online.
Divorce and Custody Books Discount Divorce Bookstore
Over 100 Titles of the Best Books on Divorce & Custody.
Divorce Downloads Divorce Download Center
Instantly Download, Books, Manuals, & Forms.
Divorce Worksheet Free California Divorce Worksheet & Separation Agreement
Your Guide to Get Organized and Put Everything in Writing.
Either parent may be ordered to pay an amount necessary for the support, maintenance and education of the child. Child support is calculated using the California child support guidelines. An amount different from that which is produced using the guidelines may be ordered based on specific deviation factors and also at the discretion of the court.
Divorce Lawyers & Mediators

Find Professionals

Easily Connect With a Lawyer or Mediator
Have Divorce Professionals from Your Area Contact You!
Enter Your Zip Code:


Start Your Divorce File for a California Divorce


Settle Your Divorce Negotiate Your California Divorce


Support Forum California Support Forum

Guarantee Official PayPal Seal Facebook Twitter Versign Secure Site