Expert tips by Peter Curry (Family Lawyer at Curry Jones Lawyers)
On television, divorce and separation is all about lawyers and their clients having dramatic confrontations in boardrooms, complete with ultimatums and walk-outs.
The reality, not surprisingly, is somewhat different.
Where parenting is concerned, the major part of the work involves separated parents trying to negotiate directly with each other on a range of matters in an attempt to achieve good outcomes both for themselves, and most importantly for their children.
Unfortunately, negotiation is not a skill that we are taught at school.
So how do you negotiate?
Most people will be familiar with the customary price negotiation in places like Bali. Buyer and Seller take an initial “fixed” position, and then edge slowly towards each other by gradual mutual concessions.
This is called positional bargaining, and while it is fine for buying T-shirts, it does not work well in parenting disputes.
“I am entitled to have the kids one week out of two.” “I will allow you to see the kids every second weekend.” These sorts of positional statements are common in family disputes, but they are usually unhelpful.
Bargaining from set positions is counter-productive, and can stall rather than solve disputes. Agreement depends upon one or both parties giving ground, usually without any reasoned basis. This often leads to impasse, where parties refuse to lose face, or be the first to give in.
Interest based negotiation
Experts suggest that if you want your negotiations to be successful, and to provide creative and long-lasting solutions, you should adopt a negotiation style known as as interest-based negotiation.
Interest-based negotiation avoids fixed positions, and concentrates on explaining and advancing the detailed reasons or interests behind those positions.
Some examples of interest based statements: “The children need to spend substantial and meaningful time with each of us.” “Our child needs the best available care and treatment for his condition.” “Our children need some framework within to develop their sense of right and wrong.” Such negotiation tends to focus on the needs of the children, not the wants of the parents.
Putting negotiation on this basis tends to promote discussion, and allows the development of creative and effective solutions. Statements of interest can usually be addressed or solved in a number of different ways, unlike positional bargaining where only one result is possible.
Even more fundamentally: where two conscientious and loving parents are in dispute, the underlying interests expressed by both parties to the dispute will usually be more or less the same.
To give some examples: most parents genuinely wish to spend meaningful and substantial time with their children, and be intricately involved in their lives. Most parents want to give their kids the best possible diet, health care, and education they can afford, along with strong family, friendship and community connections.
Perhaps most importantly, most parents are willing to make very significant sacrifices to give their children the best opportunities in life, which can of course include making compromises with the other parent.
There will of course be situations in which negotiation is not possible. The existence of violence or intimidation can provide one example. One parent may be unwilling to relinquish their position, or maintain that certain matters are ‘non-negotiable’. Some issues are by their nature difficult to negotiate, such as where one parent wishes to relocate, perhaps interstate or even overseas.
Negotiating isn’t easy
Negotiating can be hard work, especially after separation where such strong emotions are involved. However learning good negotiation skills greatly increase your chances of negotiating a good parenting outcome with your former partner.
Where parents cannot reach agreement, mediation can assist. Mediation is a process designed to facilitate good negotiation, and a skilled mediator can assist parties to reach agreement even in cases where agreement seemed unlikely.
To access mediation services contact your local family relationship centre http://www.familyrelationships.gov.au or your local Community Legal Centre. Legal Aid WA also provide significant family law mediation services, and there are very good private mediators available, although their services can be expensive.
Peter Curry-Jones is principal solicitor at Curry Jones Lawyers. Peter practices primarily in Family Law, representing private clients in financial/property and parenting matters. He is a member of various Legal Aid panels, and also holds an appointment to the Mental Health Review Board WA. To see all of Peter’s articles, click here.