Frequently one of the impediments to successful divorce negotiations is the use of language

which, while it may accurately convey what a person perceives or feels,  ultimately leads to hurt feelings, misunderstandings and, thus, litigation instead of negotiation.  This is because the divorce is ultimately a lawsuit, and divorcing parties are entitled to utilize all of the procedures and tools available to them in any suit -- the same procedures and tools as if they were suing their employer for sexual harassment, for example. The difference, of course, is that that the majority of people getting a divorce still have to co-parent or even co-grandparent, but the aggrieved employee will never have to deal with his or her employer again after the lawsuit is settled.  Parents continue to deal with each other even after the children are grown and there are grandchildren.  Thus, it is important to find ways that will allow divorcing couples to resolve their issues without court intervention.   And, people need to consider the emotional and financial expense of having a court make decisions for them.

Not every case may lend itself to a negotiated settlement. 

For example, it will probably be necessary to ask the court to make rulings on requests for restraining orders as well as other issues.  However, for the majority of people getting a divorce a negotiated settlement is possible.  However, there are many things that both the parties and the professionals involved need to understand about successful negotiations.  An important component of a successful negotiation is the use of language.

Some people may wonder why the use of language factors so heavily into these negotiations.  In my experience most people going through a divorce don’t want to end up in court.  They do, however, want to feel that they have been heard by the other person and that there has been efforts on both sides to address each party’s issues and concerns.  Consider that when people have filed for divorce they are already at a point where they are unable to communicate effectively and are probably unable to communicate effectively ABOUT ANYTHING.  Participating in divorce negotiations requires people to do something they probably haven’t done in a long time:  They must listen to each other in a new way where they no longer jump to conclusions about what the other person is saying.  It’s not easy.  In fact, it is hard.  However, it can be done and it can be done successfully so long as each party is aware that they can each frequently press the other’s “hot button” without even meaning to do so.  (Of course, most couples regardless of whether they are getting a divorce know exactly how to press each other’s buttons.)

So, what are some things to be on the lookout for?

1. The Use of Polarizing Language

Using the terms “custody” and “visitation”, while accurate, tends to draw battle lines.  Expressing the child sharing plan in terms of “I want to have custody and I want you to have visitation” will certainly cause the other parent to begin to focus on the terms “custody and visitation”.  The focus, in fact, should be on a parenting plan that works for the child or children and not on the terms.  Parents who focus on working out the times the child or children will be spending with each of them rather than arguing over the terms “custody and visitation” will be more successful in their negotiations.  And, being more successful in the negotiating process means that these parents will ultimately be more successful in their co-parenting post divorce.   Ultimately, the parents are more likely to stay our of court which causes less stress to the children and to them.  So, everyone comes out ahead.

2. Framing Issues In A Combative Manner. 

I have been in a number of negotiations where we have reached an impasse on an issue and have decided to move onto another issue.  Unfortunately, someone may say “We can fight about that later” when the non-combative way of phrasing this is:  “We’ll put this on our list to discuss later.”  It may seem small, but framing issues in terms of having to be fought out later rather than  discussing them makes a huge difference in the mindset of the parties who are experiencing the divorce. People have already had their share of “fights” and don’t need to be gearing up for another one. 

3. Engaging in Position Based Negotiations Rather Than Interest Based Negotiations. 

Positional based negotiations are adversarial as the “other side” or “opposing party” is seen as an opponent.  (Again, labels play a large part here.)  Reluctantly, a concession will be given.   Reluctance leads to resentment and this, of course, results in either the negotiations breaking down or the parties litigating issues in the future.  Also telling someone that you are not going to change your position is also not conducive to reaching resolution as it only causes each party to dig in their heels.  Interest based negotiations seek to find an outcome that is mutually acceptable to both parties.  Of course, neither party can generally meet all of their goals and objectives but it is important to ask each party to set forth realistic goals and objectives and see if a solution can be fashioned which will benefit both parties.

4. Referring to the Other Person In the Third Party. 

Sometimes a person will refer to his or her spouse as “he” or “she” rather than using the other person’s name.   While it is understandable that doing this is part of venting anger and frustration, referring to someone in the third person as if they aren’t even the room only serves to create additional conflict because that person will feel they are being diminished.      People who feel their feelings are being diminished are not likely to be able to act in a constructive fashion to resolve issues. 

5.  Using Four Letter Words.   

It should be evident that using four letter words during a business meeting is unprofessional and disrespectful.  However, it is amazing how many people actually do swear during negotiations.  Using curse words will not bring resolution to any issues but will only serve to cause people to focus on the fact that “them is fightin’ words”.  Learning how to express oneself not only allows for improved communication but also provides for a better understanding of one’s feelings.