“Getting to Yes”: The Key to Successful Property Settlements
When it comes to family law property settlements, the key to success is “Getting to Yes”. This was the title of a book which emerged 34 years ago from the Harvard University. The principles outlined in this book show the best way to come to a good agreement following a separation and remain highly relevant, especially to people involved in a family law dispute.
Choosing Your Negotiation Style
Most people approach disputes with a mindset of "positional bargaining." This involves each side taking a position, arguing for it, and making concessions to reach a compromise. While this method can sometimes work, it often falls short. It is lazy and tends to increase costs and exacerbate the dispute.
A successful dispute resolution process should meet three criteria: it should produce a wise agreement, if possible, be efficient, and improve or at least not damage the relationships between the parties.
In family law disputes, there's a tendency to adopt a “hard positional bargaining style”. This involves starting with an extreme stance, stubbornly holding to it, and making small concessions only as necessary. This approach turns negotiations into a contest of wills and often is a drawn out inefficient and very expensive process. On the other hand, adopting a “soft positional bargaining style”, where you see the other side as friends and make concessions to avoid confrontation, is no better or even worse. It can lead to quicker agreements but rarely good ones. It leaves you vulnerable to exploitation by a hard bargainer.
The Answer: Principled Negotiation
The solution is not to choose between hard or soft positional bargaining but to “change the game” entirely. The answer lies in adopting a "principled negotiation". This approach has five key elements:
People: Separate the people from the problem. Be hard on the problems by all means. But always soft and empathetic to the people.
Interests: Focus on interests, not positions. Instead of taking rigid positions, think about the underlying interests. So, in family law property settlement, this includes the interests in housing people and children, the interest of having a good retirement, the interest of having financial security.
Options: Before deciding on a course of action, brainstorm multiple options that could benefit both parties.
Criteria: Insist that the result be based on some objective standard. In family law property settlement, this is the likely result if the matter were to be determined by the Court. This helps to ground the negotiation in reality and fairness.
Know your BATNA: it is important in any negotiation to know and keep in mind the “best alternative to a negotiated agreement”. In family law, if you can’t come to a property settlement, you will then be likely to attend Mediation to try to resolve it. Know what this entails and the expense. If it can’t be resolved there, it is then likely that one party will commence litigation in the Court. Know what that involves and the cost and how to go about it.
What Do You Really Want in Your Property Settlement?
So, this is the key to family law success, particularly for property settlements. Don’t be afraid of problems and conflict. It is necessary to reach a good resolution. But go about it in the right way. Adopt a good negotiation platform. By doing this, you can achieve a Smart Separation, leading to the best possible resolution and a great settlement.
Contact me for free initial advice as to your rights and entitlements and to receive a free copy of the 16-page Guide “How to have a Successful Separation by the Smart Separation System”. Book an appointment online www.moderndivorcesolutions.com.au or ring 02 8075 0141
Andrew Corish, BA LLB, Accredited Specialist Lawyer (NSW Law Society)
Modern Divorce Solutions- Specialist Family Lawyers
