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Dissolution negotiations: language matters

Posted: August 31st, 2010 | Uncategorised | No Comments

Michele Sacks Lowenstein


Legally Speaking
By Michele Sacks Lowenstein

One impediment to successful Registered Domestic Partnership (RDP) dissolution negotiations is the use of language which, while it may accurately convey what a person perceives or feels, ultimately leads to hurt feelings, misunderstandings and, thus, litigation instead of negotiation. This is because the dissolution is a lawsuit, and dissolving parties are entitled to utilize all of the procedures and tools available to them in any suit—as if they were suing their employer for sexual harassment, for example. One difference, of course, is that that many partners seeking a dissolution still have to co-parent or even co-grandparent, while the aggrieved employee will never have to deal with the employer after the lawsuit is settled. Parents continue to deal with one another even after the children are grown and there are grandchildren. Thus, it is important to find ways for dissolving partners to resolve their issues without court intervention. And, partners should consider the emotional and financial expense of having a court make their decisions.

Not every issue can be negotiated. However, a negotiated settlement is possible for most dissolutions—if all parties understand certain components of successful negotiations, one of which is language.

Some wonder why language factors so heavily into these negotiations. In my experience, most dissolving partners don’t want to end up in court. Each wants to feel that he/she has been heard by the other, and that there have been efforts to address his/her issues and concerns. Frankly, by the time partners file for dissolution they are already at a point where they are unable to communicate effectively about anything. Dissolution negotiations now require them to do something they probably haven’t done in a long time: listen without jumping to conclusions about what the other person is saying. It’s not easy, but it can be done—successfully—as long as each party is aware of his/her ability to press the other’s “hot button” unintentionally. Of course, most partners, dissolving or not, know exactly how to press each other’s buttons.

So, what are some language “roadblocks” to be on the lookout for?

Polarizing language
“Custody” and “visitation,” while accurate terms, tend to draw battle lines. Expressing the child-sharing desire “I want to have custody and I want you to have visitation” will cause the other parent to focus on the terms “custody” and “visitation.” The focus should be on a parenting plan that works for the child(ren). Co-parents who focus on working out the times the children will be spending with each of them rather than arguing over particular terms will be more successful in their negotiations, and ultimately, in their post-dissolution co-parenting. They’re also more likely to stay out of court, which causes less stress to the children and to themselves, and everyone comes out ahead.

Framing issues in a combative manner
I have been in a number of negotiations where we have reached an impasse on a given issue and decided to move onto another. Replacing “We can fight about that later” with “We’ll put this on our list to discuss later” may seem small, but framing issues in terms of having to be “discussed” rather than “fought out” makes a huge difference in the mindset of the dissolving parties. They’ve had their share of fights and don’t need to be gearing up for another one.

Position-based, rather than interest-based, negotiations
Position-based negotiations are adversarial as the “other side” or “opposing party” is seen as an opponent. (Again, labels play a large part here.) Reluctantly, a concession will be given. Reluctance leads to resentment which results in broken-down negotiations and/or future litigation. Moreover, one partner stating “I am not going to change my position” is not conducive to reaching a resolution as it causes the other partner to dig in his or her heels. Interest-based negotiations seek to find an outcome that is mutually acceptable to both parties. Of course, neither party is likely to meet all of his/her goals and objectives, but it is important to ask each to set realistic goals and objectives and see if a mutually-beneficial solution can be fashioned.

Third-person references
Sometimes, venting anger and frustration, one partner will refer to the other as “he” or “she” rather than using the name. Using the third-person, as if he/she isn’t even in the room, creates additional conflict because the “third person” will feel diminished and is not likely to act in a constructive fashion to resolve issues.

Four-letter words
It should be evident that using four-letter words during a business meeting is unprofessional and disrespectful. Yet it is amazing how many people swear during negotiations. Curse words will not bring resolution to any issues, but will serve to focus the other party on the fact that “them is fightin’ words.” Learning how to express oneself not only allows for improved communication but also provides for a better understanding of one’s feelings.

Negotiating a dissolution in a conference room with either a mediator or two attorneys is hard work. But the result is worthwhile if co-parents bear in mind that they are parents forever—and the story of their dissolution will, ultimately, be their child’s story as well.

—Michele Sacks Lowenstein is a Certified Family Law specialist in San Diego. She has been practicing family law for 28 years and is the co-chair of the Family Law Section of the San Diego County Bar Association and a member of the Greater San Diego Business Association (GSDBA).

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