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Mediation: Positional vs. Principled Negotiations

Mediation, a form of alternate dispute resolution, uses a different process than when parties litigate a quarrel or major battle. In divorces, some falsely believe that mediation is only used when parties do not fight and are polite with each other. As an experienced Rhode Island Divorce Mediator since 1994, I have witnessed the wonderful effectiveness when even high conflict parties in mediation express their thoughts, feelings, needs, fears and ideas.

When parties with or without lawyers negotiate, usually the focus is on positions. "That car lists for $28,500." "I won't pay a dime over $24,000." Negotiations lock people into positions, with ego's driving the settlement. Party's interests, such as trading in a gas-guzzler or moving inventory off the floor, are lost. Agreement becomes less likely unless it is a mechanical splitting of the difference between final positions. A negotiation process based on the likelihood that there will be a splitting of the difference, suggests starting with an initial extreme position, causing more distrust and anger by the parties, followed by stubbornly maintaining the position.

Divorce settlements are more complicated that negotiating a car purchase. But, we do see people locked into positional negotiations - I want 4 nights with the child and 60% of the assets.

Experienced divorce mediators avoid positional bargaining and use principled negotiation focusing on parties' interests. Instead of positioning about the number of nights a child spends with each parent, principled negotiation begins with a background of the child(ren), including the child's age, needs, emotional situation based upon the split of the family and the activities that the child participated in with each parent. Then, each party's interests about the child are considered, such as whether a parenting plan should allow the child to have significant time with both parties, extended family, whether certain parties will continue specific activities (Mom always brought a child to the doctor while Dad went to the dentist and hockey practice). This interest based negotiation used in mediation does not foster splitting the difference and unrealistically locked-in positions, but finding a solution that works for the family.

The same analysis works with financial issues as well. One party's interest may be to retain significant current dollars for a down-payment on a house while the other is willing to accept a larger portion of retirement benefits. Positional bargaining (I want 60%) fails to consider that type of inquiry into each party's interests.

Most divorced parties share children for the rest of their lives. Unlike the car dealer without an expectation of a continued relationship, parties learn to communicate as their relationship continues on a different another level.

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Law Office of Steven J. Hirsch, Esq

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