California family lawyer and mediator Mari Frank provides 5 negotiation steps when preparing for divorce mediation and achieving a satisfying settlement.
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Hosted By: Dan Couvrette, CEO, Divorce Magazine
Guest Speaker: Mari Frank, Family Lawyer and Mediator
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5 Negotiation Steps to Get What You Want In Divorce Mediation
Dan Couvrette: I’m Dan Couvrette, the founder and publisher of Divorce Magazine and www.DivorceMagazine.com, and I’m very pleased to have Mari Frank as my guest on this Divorce Magazine podcast. By the way, this podcast will be featured on Divorce Magazine and on iTunes later this week.
This is the sixth podcast that Divorce Magazine has produced and our other podcasts featuring Judge Michelle Lowrance, Financial planner, Sharon Numerow, Los Angeles family lawyer Steve Mindel, Toronto family lawyers Ken Nathens & Brahm Siegel and family lawyer, Lori Becker from Detroit can all be found on www.DivorceMagazine.com and on iTunes. Just search using the word Divorce Magazine. Each podcast provides valuable insights and information to help people like you who are considering divorce or are in the process of a divorce or are recently divorced. Our goal is to help people make better, more informed choices to ensure that they are not simply surviving their divorce, but they’re actually growing and thriving through the process. So let me take a moment to tell you a little bit about my guest.
Mari Frank Marie is an attorney, mediator, and negotiations professor and has been for 26 years. She empowers couples in mediation to make informed decisions and to turn adversity into successful agreement. You can listen to her show, Prescriptions for Healing Conflict at www.ConflictHealing.com I’ll repeat that again. It’s www.ConflictHealing.com. Welcome, Mari. Thank you very much for joining me.
Mari Frank: Thank you, Dan. I think this is a wonderful idea to help people.
So let’s get right to it, I’m going to start asking you some questions and I know you’ve got a ton of information you can share with us. So let’s start with the question that, in most divorce cases, there’s usually some form of negotiation, even if the parties are in litigation. So what do you think that each party should do to get the most successful agreement? What are the steps they should take? What should they do?
Well, you’re right in every kind of way. You know, anytime that you have a divorce, you’re going to do some kinds of negotiation and hopefully more than less. And so some of the things that you have to do is really get your negotiation power. And what I’m talking about with power is not the power to destroy or overwhelm the other person, but the power to influence them to get a good agreement so that you get your needs met and the other person gets his or her needs met as well.
I have an acronym that helps people to do that. And it’s the word Power. And I can go over all of those. What each letter stands for. P, for example, stands for preparation, and the second one stands for options. The third is W, worthiness, E for enthusiasm and energy. R for relationship and ask for a satisfying solution. So are you ready to go through those with me?
Yes, absolutely. Please give us a bit more detail.
Right. For me, it’s always easier to think of a word to that before I go into a negotiation. I make sure that I’ve covered all of those bases. So the first one. I’m sure Dan, you don’t go into any kind of an exam in high school or in college before without preparation, right? Because if you don’t prepare, you’re going to fail,
Right? You’re scrambling,
You’re scrambling and you don’t know what you’re doing and you’re just kind of like: “on my goodness”. And the other person has a lot more power. So the person who is most prepared will have the upper edge and will most likely get his or her needs met more than the other person.
So when I’m talking about preparation, there’s really three areas. It’s preparation in the content. Another word. Knowing the value of your houses, knowing the best interest of your children and what they need and what they want. So that’s one area of the preparation. That C for content, all the content issues that you have to discuss either through litigation or mediation or arbitration or whatever you use.
The second, the R stands for, like CPR, to breathe life into your negotiation. R stands for Relationship. What am I going to do if I had a bad relationship with my spouse and that’s why we’re getting a divorce? I have to somehow change the whole attitude of both of us so that we can really have a better relationship for the purpose of negotiating.
It doesn’t mean we’re going to get back together, although lots of times that happens in my mediations. It’s pretty amazing. But the real truth is that, you know, we need to have a relationship that at least we can build some trust back in so I can rely on you. That when you say you’re going to do something, you’re going to do it. And when I say I’m going to do something, I’m going to do it, and that helps us to co-parent. That helps us to divide our community property or marital property. And then C, P, R, the P stands for Procedure and the R stands for Relationships. So those are the three things within the preparation. I need to know what the issues are, I need to go and find out the value of my house. I need to know, what would be fair for me in terms of getting a job if I haven’t had a job, what can I earn? What is my possibility for child and spousal support? I need to look at all that. I need to know if I can afford to take the house.
If I want to buy my spouse out of the house, what are those property taxes? What is the value? Are there any liens against the house? What does my credit report look like? Can I refinance or will he do a transfer or even stay on that loan? So there’s lots of things that you need to do some research before you walk in, and that’s part of the preparation.
Yeah, of course. The attorney or mediator, or mediator like yourself who is an attorney, should have a checklist and should go through this sort of information with you and give you some guidance, I’m assuming.
Yes, it’s really important that you have a good guide or a good coach. And if you have an attorney, sometimes they’re going to give you that list. However, sometimes what happens is they farm everything out to forensic accountants or to psychologists, and you really need to be an active participant, whether you’re in litigation or you’re in mediation. And oftentimes, especially if you’re in litigation, you’re really scared and that fear overtakes you.
You need to sit down and make your own list, like you say, and work with them. All the people who can help you, all of the various experts that can help you learn this information. But now with the internet, a lot of this can be found out right on the internet. So the more information you have, that’s really good. Information about what you need to know about your kids, about your property, about your relationship with your spouse, about what the laws are. The more you know, the more you’re going to feel more at ease and calm and be able to make some really good strategies.
Can you kind of go through what you see as how negotiation is different in mediation than in litigation? How does it differ when you’re using the two processes?
Great question. You know, when you get into litigation, you are often looking at blame. Unfortunately, it is an adversarial approach. When you’re in the litigation process, you are trying to get the most that you can get. But often what happens is there’s lots of accusations. There’s a lot of assumptions about what the intent of the other person is. And my experience from being a lawyer for 26 years and going through litigation with my own clients, with myself. The difference between that and mediation is there is a whole different mindset in litigation. You’re looking at the past, you’re looking at who did what. You’re trying to get the upper advantage and there is a winner and a loser often. Whereas in mediation, what you’re trying to do is look at the present and problem solve for the future.
So litigation is looking backward. Mediation is looking at the present problem, solving it for the future so you can have a life that you can move on with and have some peace of mind. Have a decent relationship with your ex spouse, especially if there’s kids. And just be able to move on with the new life and feel that you’ve accomplished something.
Also, in litigation, you delegate everything to your attorney to do. They’re your mouthpiece in mediation. Even if you go into mediation with or without an attorney, you have the opportunity to be heard. And it’s a private safe haven where no one else can hear it. You’re not just on a witness stand saying what happened, and you have to answer only the question. When you’re in mediation, you can talk about your feelings, you can talk about the hurt, you can get that catharsis. You can release. You can really be guided to focus on, what is it that you really want? What is it that you really need? And when you do that, that helps you to negotiate. The other thing is, when you’re in mediation, you have an attorney, mediator whoever you choose, who is trained to facilitate to actually get rid of that blame too, to keep people on target, not to let them start blaming and accusing each other, but to focus on finding solutions, what I call Solution Hearing. And that’s the beauty of mediation, all of that nastiness from the past can be really set aside and you can say, okay, let’s focus on, what is it that you need to feel whole to feel good to go forward. What is it that your children need for their best interests? And so that’s really the difference in negotiation going forward or going backward.
Right. So that means that in mediation there’s a better balance and the mediator can help balance the situation. So if one person tends to be more powerful and the other person tends to be more timid, that the mediator can notice that sort of thing and help the balance is that something happens.
Absolutely. That’s such an important point. Thank you for bringing that up, because there are times that one spouse will be out there as the breadwinner and they’re used to negotiating back and forth, and the other party hasn’t had that experience. So one of the things that I do as a mediator is really to empower my clients and teach them the skills to actually go through and say, okay, I know this is what you want now, why don’t you show us how this is helpful to the other person as well. So we can actually balance the teeter totter, as you would say, and make sure that both parties have the opportunity to be heard and that one party cannot overwhelm the other party. And it’s our job as the mediator to make sure that there is a fair and balanced agreement and one that is in line with the law of your state.
Right. And after people do a mediation, do they typically go to see a lawyer after, or is it not necessary? And I know you’re in California, so it may be different from state to state, but how is it in California?
Actually, in any state, it is ethically appropriate. And this is part of the American Bar Association rules, a model rule for mediation. And that is because the mediator is the neutral. That mediator really has a duty under all of our ethical code to refer clients to at least review all of the agreements prior to signing. And that’s something that I always do. You could really be guilty of malpractice if you didn’t do that. So we can’t force someone to go, and there are many times that I’ll tell clients they have to sign and that they were advised to do it, but sometimes they won’t do it if they’ve done enough of their homework and they’ve really been involved and they understand the law. And if you have a mediator who provides you the law and cases such as I do, then they feel like they really understand it. But it is important to do that. But I think we should go back to the elements of power. Because we talked about preparation. Can we do that?
I want to ask you actually a bit more about power and also about energy. What kind of energy do you bring to the mediation?
Well, that comes to actually the third word, which is worthiness – I mean, P.O.W.E.R, let’s go to O. which is Options. Let me tell you how important it is that you create options for settlement. If you go in with your mindset, I have to have A, B, C, and D, and you don’t have any other options available, it’s going to be a positional fight. It’s going to be an argument.
But if you come in and you have some options for settlement and you come in and you talk about, well, there are several things that we could do and it’s A, B, C, and D, and, and this might work for us best. For example, with a child custody agreement, you might want to talk about several ways that you can set up a custody schedule, and give that other person a chance to explore those options with you. And if you come in with options, you look like you’re more flexible. The other person also will mirror that and come up with options, and especially if you’re in mediation, your mediator is going to ask you for that.
The next one is W. We went to P for Preparation. O, for Options now, W for Worthiness.
If someone doesn’t trust you, they’re not going to think you’re very worthy. So what you have to do is you have to recreate the trust. If you’re in a divorce, it is very likely that you’re not going to trust your ex. That’s just human nature. Don’t take it personally. How could you not trust them? We were married 28 years. I tell my clients, you know what? If that’s the name of the game, what you have to do is build up trust. In other words, you set up a meeting that is a fair meeting. You listen to the other person, really listen and repeat back what they said so that they know that you’re listening.
You make certain little agreements, like even an agreement about when to meet and then you follow through. If at any time you hide or you’re not providing full disclosure, you’re going to ruin that trust and you’re required to do it. So build up that trust and you will be considered worthy.
Another thing to do is, if you’ve been married a long time and they’ve seen you at your worst or your best, I would say to you, when you go into that negotiation, whether you’re with an attorney or you’re in a mediation with your attorney, dress up. This is a business deal, dress up and look like you’re coming into business meeting. Look different from what you look like in your home or when you come home from work, because that sets a different mindset.
So you need to build worthiness, and that is based on trust. Then we have E, which is what you were talking about, Dan, Energy. A lot of people in divorce obviously are either feeling very, very hurt or very, very angry or very depressed, right? It happens that way. So aside from getting some counseling to help boost you, or maybe some spiritual counseling, which I also think is helpful, it’s important that you come into the negotiation and get yourself ready ahead of time. You want to be energetic. You want to be enthusiastic, not energetic with anger, but energetic, meaning that you’re enthusiastic, that you come in with an intention, that you’re going to share what the other person has to say.
You’re going to be respectful of what that person has to say. That doesn’t mean you have to agree with it. it doesn’t mean you have to accept it. You’re going to hear it, you’re going to be respectful and then you are going to have the energy, the positive energy to say, okay, I heard what you have to say. This is the part that I like about what you said, that will work for me. Here are some concerns I have.
What can we do to work this out? So you have to have an intention that you are going to come to resolution. You’ve come in positive. Hopefully your mediator and you know. It’ll be easier to do rather than sitting in the courthouse in the cafeteria, which is very depressing. But if you’re in mediation, one of the things I do is I always have goodies. I always have food to eat. It’s quiet, we have a plant, we have something to make us feel a little bit more at home. So you can try and do that. If you’re with someone in a negotiation, you can bring cookies. You can do something to bring a positive olive branch, so to speak, to show that you’re really there to try and have a positive energy to focus on problem solving and finding solutions.
So then we move on to Relationship.
Relationships. Now that’s one that can be tough because let’s say you have been in litigation for a long time and now your attorneys say, well, let’s go to the table. Well, there’s so much underlying anger from the past, the history, a lot of baggage, or maybe you have just been so hurt.
Maybe one party has had an affair or is in a new relationship and you feel very betrayed by all this. Or maybe the kids haven’t gotten what they needed or something. So you come in with a lot of pain. I would suggest before you come to that meeting that you consider the relationship. You consider that the other person did the best he or she could do. Get yourself in that kind of a mode and think about what is it that that person needs. You know that person. You’ve lived with that person maybe five years, 20 years, whatever it is. You know that they have to be right. That’s their personality style. Then create some options, and when they choose an option, let them think that they created it. So you have to think about what I need to get what I want, but I also have to make sure that the other person sitting next to me at the table or across the table is also going to get what he or she needs. And it may just be, I’m sorry, I never meant to hurt you. It could be something as simple as I’m sorry, and I never meant to hurt you, or maybe you’re the best parent around. Something that you can take about what’s happening now and make it different from the past. Just say, you know, we have a common interest.
So to build a relationship, you want to build the common interest. Number one, we don’t want to waste all of our marital property in litigation. That’s one commonality. Another commonality, we both love our kids. That’s another commonality. We both really are in pain. It’s taking us away from our work, our enjoyment, our peace of mind.
We really both want to get this over with in a positive manner, so we both can go on with our lives. If you sit down and look at all of the things that you have in common, I think you’ll find that 80% of all of the issues, you can say, we are really on the same page. Once you do that, you start with your commonality, then you can go to where we’re in agreement and where we want the best interest for our kids.
Now let’s figure out what really that is. What you need to do is open up, ask open ended questions. Build a relationship, ask the other party, you know, what is it that you really need? What is it that you wanted. How can I be helpful to you so that I can get what I want? So turn it into open-ended questions because that creates a better relationship for problem solving.
So if people go to your website, Mari, www.ConflictHealing.com will they get more information that can help them through their divorce?
Oh yeah. I have a new radio show. I’ve had a radio show for five years, but my new radio show, I interviewed, just like you’re interviewing me, I interview top experts who are either directors at peace institutes or mediation institutes or they are authors talking about dealing with such things as anger, dealing with how to overcome anger, how to turn that around.
And also, I have articles that I’ve written that can be helpful to people, and of course, we link to your wonderful website, DivorceMagazine.com. And I have lots of strategies for how you can help yourself to really get ready and be prepared for that negotiation or that mediation.
Fantastic. I want to thank you for all of the information. I know that people who are listening in to this podcast will probably have to play it two or three times because you gave so much information in such a short amount of time and so many good ideas. So I encourage people to do that. I encourage people to go to Mary’s website. www.ConflictHealing.com. if you’re looking for additional information and resources, please go to DivorceMagazine.com or visit our blog.
They can also go to www.MariFrank.com, where we have a lot more information as well that they can get on mediation and lots of different articles. And we link to, of course, your website, www.DivorceMagazine.com, and others. And I just want to tell people that if you’re in a negotiation with your attorney or without your attorney and your spouse pushes your buttons, you really need to stop and take a deep breath before you respond because it’s very easy to react and get into the old mode that you were in before. And so stop. We’ve got a whole strategy which I call hard loving that can teach you how to actually overcome that anger within yourself that causes you to feel like you’re going to explode, so that you can be calm and then use your negotiation power to really get a good agreement that you can live with it and is satisfying for both parties.
Sounds great. Let me give Mary’s website one more time. It is www.MariFrank.com. Our next podcast is on Tuesday, June 14th and information about that podcast will be up on www.DivorceMagazine.com tomorrow. Thank you again Mary, and thank you folks for listening in.
Yes, and make sure that you go to www.DivorceMagazine.com. There are wonderful articles and it’s a really great resource. Thank you, Dan.