Embracing the "Getting to Yes" Mindset During Divorce Negotiations | Expert Guide

Going into divorce negotiations prepared ensures you'll end up with a satisfying outcome.

"Divorce negotiations are fun!" said no one ever. Even in the best of circumstances, divorce negotiations often become battlegrounds where emotions run high and rational decision-making takes a backseat. Going into the process unfamiliar or unprepared for the negotiation process is a recipe for disaster that can haunt you for years to come.

But that's not going to happen to you because I'm going to walk you through the principles behind one of my all-time favorite books about how to handle negotiations (divorce or otherwise). The principles outlined in Roger Fisher and William Ury's groundbreaking book "Getting to Yes: Negotiating Agreement Without Giving In," are the pillars of my negotiation coaching. Once applied, they put you in the driver's seat, allowing you to transform your divorce negotiations from one adversarial conflict to the next into collaborative problem-solving sessions.

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Why Traditional Divorce Negotiations Often Fail

Traditional divorce negotiations frequently operate on what Fisher and Ury call "positional bargaining." In this approach, each spouse stakes out a position (like "I want the house" or "I deserve full custody"), defends it stubbornly, and makes incremental concessions until reaching a compromise. This approach creates several problems:

- It pits spouses against each other as adversaries

- It anchors discussions around positions rather than underlying needs

- It generates emotional tension that hinders rational decision-making

- It often leads to agreements that neither party feels truly satisfied with

- It damages the possibility of a functional post-divorce relationship

This is particularly problematic for divorcing parents, who must continue co-parenting effectively long after the legal process concludes.

Divorce as Negotiation: My Strategic Approach

One thing I often emphasizes to clients is, "divorce is one big negotiation." It's the negotiation of time (parenting), money (cash & debts), and assets (tangible and intangible). While some may feel that having a negotiation strategy sounds calculating, it's actually essential for achieving the outcomes that matter most to you and your family.

My approach aligns with Fisher and Ury's "Getting to Yes" principles. Both emphasize that successful negotiation isn't about being aggressive or manipulative—it's about clarity, preparation, and understanding what truly matters to all parties involved.

Before diving into negotiations, consider my coaching mantra:

There's an emotional side of divorce and a business side. Separate the two.

This mirrors Fisher and Ury's first principle of separating the people from the problem. By acknowledging that both sides exist but need different approaches, you can navigate each aspect more effectively.

With a little preparation, you can set yourself up for a successful negotiation. Here's where to start:

Identify your goals and priorities - Understanding what you truly want from the divorce beyond just immediate positions

Considering what your soon-to-be-ex-spouse might want - Recognizing their interests helps create mutually beneficial solutions

Determine what's best for your kids - Keeping their well-being at the center of parenting negotiations

Develop strategies to handle emotional triggers - Planning how to stay focused when emotions arise

Remember, YOU are the captain of your own ship. A clear negotiation strategy serves as your compass through the challenging waters of divorce.

The Four Pillars of Principled Negotiation in Divorce

Let's explore how Fisher and Ury's four core principles can transform your divorce negotiations:

1. Separate the People from the Problem

Everything about divorce feels personal, making this principle particularly challenging yet crucial. When your spouse says something hurtful or unreasonable, remind yourself that you're negotiating issues, not attacking each other's worth or character. (And recognize that sometimes this is a tactic being used to throw you off your game!)

DO THIS:

- Acknowledge emotions without letting them drive decisions

- Use "I" statements instead of accusations

- Take breaks when emotions run high

- Consider using a mediator or divorce coach to facilitate communication

- Focus on the future rather than rehashing past hurts

Remember that separating people from problems doesn't mean ignoring feelings—it means recognizing emotions while preventing them from hijacking the negotiation process.

2. Focus on Interests, Not Positions

Behind every position in a divorce negotiation ("I want the house") lies an interest ("I need stability for the children" or "I need financial security"). By uncovering these underlying interests, you can often find creative solutions that satisfy both parties.

DO THIS:

- Ask "why" questions to uncover underlying interests

- Share your own genuine interests and concerns

- Listen actively to understand your spouse's true needs

- Look for shared interests (like children's wellbeing or financial stability)

- Explore multiple options that might satisfy both parties' core interests

Here's how this can play out: If one spouse wants to keep the family home for stability while the other needs financial security, options might include:

- A buyout with extended payment terms

- Co-ownership for a defined transition period

- Selling and finding two homes in the same school district

- Trading equity in the home for other assets or reduced support payments

3. Invent Options for Mutual Gain

During negotiations, when people feel like they're getting something, they're more likely to agree. This principle encourages creative problem-solving rather than zero-sum thinking. Before deciding on solutions, brainstorm multiple possibilities without immediately judging or criticizing them.

DO THIS:

- Hold dedicated brainstorming sessions separate from decision-making

- Generate multiple options before evaluating any

- Consider different arrangements for different assets

- Look for opportunities to "expand the pie" rather than just dividing it

- Explore timing alternatives (gradual transitions vs. clean breaks)

How this can play out during divorce: Instead of fighting over a business one spouse built, consider whether:

- One spouse could buy out the other over time

- The business could be restructured with different roles

- Outside investors could be brought in

- Profit-sharing arrangements could be established

4. Insist on Using Objective Criteria

When direct negotiations reach an impasse, turn to neutral standards and fair procedures rather than power struggles or emotional appeals.

DO THIS:

- Refer to established valuation methods for assets

- Consider precedents from similar divorce cases (attorneys know about this!)

- Consult neutral experts (appraisers, child development specialists, etc.)

- Use recognized formulas for divined calculations

- Research market rates and standards

Here's how it works: If you're determining the value of a home, agree to use the average of three independent appraisals or recent comps rather than arguing subjectively about its worth.

Developing Your BATNA: Strengthening Your Negotiation Position

Fisher and Ury emphasize the importance of knowing your BATNA (Best Alternative To a Negotiated Agreement). In divorce terms, this means understanding your options if you can't reach an agreement and must go to court.

A strong BATNA doesn't mean threatening litigation at every turn. Instead, it means:

- Being well-informed about likely court outcomes

- Understanding the financial and emotional costs of litigation

- Having financial contingency plans

- Building support systems for yourself and your children

- Being prepared without being adversarial

The stronger your BATNA, the more confidently you can negotiate.

Remember, the name of the game is to find solutions better than what either of you would likely achieve in court.

Negotiation Jujitsu: Handling Difficult Tactics

Even with the best intentions, you may encounter resistance or difficult tactics from your spouse or their attorney. Fisher and Ury suggest using "negotiation jujitsu"—redirecting negative energy rather than matching it.

When faced with:

- Stonewalling: Ask questions about interests and invite critiques of your proposals

- Personal attacks: Reframe as an attack on the problem, not you

- Extreme positions: Ask for the reasoning and objective criteria behind them

- Threats: Acknowledge them without responding in kind; refocus on interests

The Importance Of Preparing for Principled Divorce Negotiations

Successful negotiation begins with thorough preparation:

1. Emotional preparation: Work with a therapist or divorce coach to process emotions so they don't hijack negotiations

2. Information gathering: Collect complete financial information, understand your budget needs, and research options

3. Priority setting: Determine your must-haves, nice-to-haves, and can-live-withouts

4. Identify Your Goals: Clarify your underlying interests and anticipate your spouse's

5. Option development: Brainstorm creative solutions before negotiations begin

6. BATNA development: Understand your alternatives if negotiations fail

The Long-Term Benefits of Principled Negotiation

Beyond reaching a fair settlement, principled negotiation in divorce offers lasting benefits, including:

• Better co-parenting relationships: By focusing on interests and separating people from problems, you're creating a foundation for future cooperation

  
  

• More durable agreements: Solutions that genuinely meet both parties' interests are less likely to require future modification

  
  

• Emotional closure: Problem-solving together provides a more constructive ending than adversarial battles

  
  

• Financial efficiency: Collaborative approaches typically cost significantly less than litigation (Paying less for divorce means having more $$$ to start your new life with!)

Modeling healthy conflict resolution: Your children learn valuable skills from watching you navigate differences constructively

From Adversaries to Problem-Solving Partners

Here's the thing, divorce marks the end of a marriage but often the beginning of a new relationship with your soon-to-be-ex, especially when children are involved. The "Getting to Yes" approach transforms this transition from a bitter ending into a restructuring that preserves dignity and establishes a foundation for future interactions.

By separating people from problems, focusing on interests rather than positions, generating creative options, and using objective criteria, you can navigate divorce negotiations with integrity and foresight. The result isn't just a fair legal agreement—it's a path forward that honors your past relationship while creating space for healing and new beginnings.

Ready To Learn More?

Now that you've learned the principles of effective divorce negotiation—now it's time to apply them to your specific situation. Divorce isn't one-size-fits-all, and neither should your negotiation strategy be. Looking for a less adversarial approach? This 20-minute video guide to Collaborative Divorce shows you how to transform divorce from a battlefield into a problem-solving partnership. Still in the "should I or shouldn't I" phase? Preparation is Power will equip you with essential negotiation tools while you decide. If you're over 50, divorce negotiations take on different dimensions—learn specialized approaches in Gray Divorce: Financial Strategies & Legal Insights.

And remember: a strong BATNA gives you negotiation confidence. The negotiation skills you're developing now aren't just for reaching your divorce settlement—they're tools for navigating your empowered next chapter.