Pop quiz. What do you call the place where everyone sits down together to talk about the terms of a divorce?
If you call it a "bargaining table," you could be subtly undermining your ability to negotiate effectively.
Case in point: a recent article by H. Lee Hetherington, titled "Planning for Settlement Negotiations: The Big Picture," which was published in the American Bar Association Section on Family Law's Winter 2015 issue of Family Advocate. Hetherington is Professor of Law at Mississippi College School of Law and coauthor of the ABA-published Lawyer's Guide to Negotiation. In the article, he discusses the importance of preparation before commencing a negotiation. Specifically, Hetherington says, thorough preparation is essential to avoid a "loss" at the "bargaining table."
Let's back up a second. In 1981, Roger Fisher and William L. Ury published Getting to YES: Negotiating Agreement Without Giving In. Revised in 1991, Getting to Yes is widely considered a seminal work in negotiation theory and practice. It tops the reading lists of many negotiation courses and workshops, and features in the bibliographies of countless books published since. Even lawyers who haven't read Getting to Yes almost certainly have heard of it, along with what its authors call principled negotiation, the core of which is this: focus on interests, not positions. Focusing on interests permits counterparts in a negotiation to search for mutually agreeable, win-win outcomes (sometimes referred to as "expanding the pie"), such as the famous story where one person wants the pulp of an orange to eat, while the other wants the peel for baking. Focusing on positions ("I want the orange," and "So do I") takes us down the road of positional bargaining, with the likely outcome that the orange is cut in half. Each party gets only half of what they wanted. Exploring the underlying interests ("I'm hungry," and "I want to add zest to my pie") permits each of them to get exactly what they want, setting aside entirely the notions of "winner," "loser," and that other problematic word, "compromise."
So, when you talk about "winning" or "losing" at a "bargaining table," you invoke language that is antithetical to the core tenents of principled negotiation. The same goes for referring (as Hetherington does) to your counterpart in the negotiation as your "adversary." Divorce and other family disputes don't have to be adversarial. Indeed, in Collaborative Divorce, the clients and their attorneys all sign an agreement that disqualifies the attorneys from taking the case into court, and moreover states that neither party will attempt to use the threat of a lawsuit as leverage. Collaborative Divorce is anything but adversarial, and it is overwhelmingly successful for those who try it.
I don't treat my counterparts as adversaries; I treat them as colleagues facing a mutual problem — one that we can help our clients to solve privately and respectfully.
And my office doesn't have a bargaining table.
It has a conference table.