Negotiation occurs when two parties communicate to resolve a problem.  It is based on the principal of “give and take”, and an assumption that both parties have equal decision making capabilities.

People negotiate things every day.  When you barter the price for something you wish to buy, you are negotiating. When you arrange your mortgage, what interest to pay and the term of the loan, you are negotiating.  Both sides of the negotiation are interested in doing a deal.  What each of them is prepared to pay, or give up, become part of the terms of negotiation.

The same can be said of a family law negotiation.  There are many issues to cover when a couple decides to divorce.  There are assets and debts to divide, the house to deal with, parenting time to sort out, and the issue of child and spousal support.

Negotiation allows for each person to decide what is most important to them, and to make decisions on that basis.  For some people, their house is their most important asset.  For others, it is their pension.  For each party, the house or pension represents security, but how they are divided up becomes part of the negotiation.

A Mediator is a neutral skilled helper that assists both parties to negotiate a solution to their problem. Whether or not you negotiate on your own, or with the help of a Mediator, you can benefit from learning and practicing some basic negotiating skills.  Here are my top tips for negotiating:

  1.  ASK FOR WHAT YOU WANT.  This means you have given some thought to your priorities. It also means that you need to be up front and communicate what it is that you want. Consider what your “bottom line” is, and what you are-and are not-prepared to give up for the thing you want most.
  2. DO YOUR HOMEWORK.  Know what you can afford, and what something is worth.  Ask the bank what you will need to get a mortgage, if you wish to buy out the house.  Compare prices.  Know what the other side’s financial position is.  Find out their priorities as well as your own.  Think about the alternatives.
  3. TIMING IS ESSENTIAL.  Negotiation and mediation work best when both sides are interested in “coming to the table”.  Sometimes one person is more eager than the other to negotiate.  Keep your ears and eyes open for good timing.  Don’t be afraid to initiate negotiations, but be prepared to walk away if necessary.  When you have a meeting of the minds, and can find some common ground, make the most of it.  If you really want to proceed, but the other side is stonewalling, you may need to consider court instead.
  4. LISTEN.  Listening to the other side is crucial.  Most people get caught up in their own story, wishes, and goals.  By really listening to the other side, you will learn what is important to them, and this can help you bargain for a good deal.  Is your ex more interested in getting a quick divorce, so they can remarry?  Is the other parent more interested in having Christmas vacation than summer vacation?  Does your partner have an emotional attachment to a painting, but not a car?  By listening, you can improve your negotiating position.
  5. SOLIDIFY AGREEMENT.  There is nothing worse than hammering out an agreement after a day or two of negotiating, to have nothing on paper to show for it.  Worse yet, is when one person changes their mind later on.  Whether you hire a mediator, or a lawyer, or negotiate an agreement on your own, make sure you put it on paper and make it official.  A good lawyer can help you transform your agreement into a Separation Agreement.  This document can then be filed with the court.

Michael Butterfield is both a Lawyer and Mediator, and can assist with negotiations, mediations, writing separation agreements, and providing independent legal advice on existing or proposed agreements.  He is located in Victoria, B.C.

Jayne Embree, M.A.

Jayne holds a Masters in Psychology and is a highly experienced Divorce Coach and Child Specialist. She is currently working with the Administrative Department of Butterfield Law.