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Negotiation - An Underlying Foundation Of ADR

In our last post, we looked at some of the benefits of Alternative Dispute Resolution (ADR) for resolving separation and divorce issues. In our next few posts, we examine the nuts and bolts of various out-of-court methods, starting with the most basic: negotiation.

A Fundamental Technique

Negotiation is used throughout various dispute resolution methods, but it's also a technique that can stand on its own.

In the best of scenarios, ex-spouses may settle post-relationship issues privately and set out their arrangements in a written agreement. But where conflict arises, disputing parties are wise to draw on the strategic negotiation skills used by experienced lawyers.

The Philosophy Of Win-Win Negotiation

The Canadian Bar Association had a great article explaining the fundamentals of effective negotiation. Following are some of the highlights:

  • Flexibility - The first key to crafting a workable solution is the willingness to leave behind an approach that's not working and move onto a different, more effective one.
  • "Carp, Shark, Dolphin" - Goals and attitudes can sometimes determine the outcome right from the outset. Think of the fish analogy:
    • Carp - Conflict-averse, this species tends to take a passive approach designed at preserving status quo. Not an optimal mindset.
    • Shark - Aggressive and confrontational, this predator is intent on always coming out on top. An almost guaranteed recipe for tension.
    • Dolphin - Open to possibilities and options, these cooperative creatures take a collaborative approach, but also know how to navigate toward a win-win solution.
  • Multiple issues - Agreement can be tricky if the stakes center on only one major issue. The more areas within which to navigate, the more room for give-and-take compromises.
  • Explicit and Implicit Needs - Beyond obvious issues such as child support or property division, each party may have unspoken, less discernible needs that can be leveraged, such as the desire to maintain post-relationship harmony for any children involved.
  • Questioning - The most effective way to negotiate is to use questions rather than statements.

These are just some of the basics of strategic negotiation. A skilled lawyer knows how to use them effectively to create mutual agreement in some, if not all, areas of separation and divorce.

Our next post will examine another ADR method: mediation.

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