PROCESSES IN DIVORCE
By Maribeth Blessing, Esquire
Negotiation
I. Definition -
A. The process of submission and consideration of offers until
acceptable offer is made and accepted. Gainey v. Brotherhood
of Ry and A.A. Clerks, Freight Handlers, Exp. & Station
Emp., D.C. Pa. 275 F. Supp. 292, 300. Black’s
Law Dictionary, 5th Edition.
B. The deliberation, discussion, or conference upon the terms
of a proposed agreement; the act of settling or arranging the
terms and conditions of a bargain, sale , or other business
transaction. Black’s Law Dictionary, 5th Edition.
II. Types of Negotiating Styles
A. Positional Bargaining
1. Competitive Strategy
a. Not concerned about the relationship with opponent
b. Prone to psychologically attack the problem
c. High initial demands
d. Limited disclosure of information about the facts and/or
the negotiator’s interests
e. Few and small concessions
f. Committed to position; frequently does not respond to
concessions
2. Cooperative Strategy
a. Concerned about relationship with opponent
b. Attempts to establish atmosphere of trust
c. Moderate opening demand.
d. Limited disclosure of information about facts and negotiator’s
interests until convinced opponent will reciprocate exchange
of information
e. Uses reasoned statements to support position
f. Less committed to position and more ready to compromise
B. Interest Based Bargaining
1. Separates the people from the problem; attack the problem
and not each other
2. Focus on interests, not positions. Not what you want but
why you want. Look for complementary interests.
3. Brainstorm options that offer mutual gain. Win/win vs.
Win/lose.
4. Insist on objective rather than subjective criteria to
govern an outcome. E.g., instead of negotiation a price for
a car, agree on the blue book value
5. Know your BATNA (best alternative to a negotiated agreement.
The purpose is to produce a better result than that which
could be obtained without negotiation. See Getting to
Yes; Roger Fischer and William Ury
C. Participants to Negotiation in Divorce Matters
1. Parties to the action
2. Counsel, if any, for the parties
3. Third parties as agreed upon or Third Parties with standing
4. Experts, if necessary
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