Proxies in Negotiation
When involved in a divorce negotiation people frequently use terms of the negotiation as proxies for measuring deeper issues and needs that they are afraid to talk about.
For example, some clients see time with the kids as a proxy of how much they are valued as a parent or how good a parent the other person thinks they are. Some see the amount of spousal support or the division of marital assets as a proxy for how much their contribution to the marriage was or is valued by their spouse.
These proxies are ever present. And they are very tricky. They are tricky because the proxies are often inaccurate, and they are being used differently by each party.
For example, money may mean acknowledgement of the value of raising kids to one spouse, but not the other. Time with the kids may represent an acknowledgement of equal parenting skill for one parent, but not have that meaning for the other. When this is the case and it is not revealed, the parties often are missing the point of what the other is saying.
It becomes easy to see how this creates a lot of the conflict, tension, miscommunication, and misundertanding in a divorce negotiation. Understanding these proxies is the point of “mining for interests” that collaborative attorneys are trained to discuss with clients. Good collaborative attorneys can uncover these proxies and then help the clients see them. One of the tricky parts of divorce or any human conflict is that our proxies often obscure our actual deeper concerns even from ourselves. But once uncovered we can find solutions that address the actual needs, instead of just arguing about the proxies. This uncovering of proxies and problem solving around underlying needs for both parties may be the heart of what makes a collaborative attorney and the collaborative process different than an adversarial attorney and process. Some collaborative professionals even refer to this process of breaking down these proxies as identifying the “conversation that we’re not having” or the “conversation that we need to have” to highlight that the deeper, obscured, and often unspoken needs of the parties are really driving the conflict, not the surface proxy issues.
Time with the kids is about actual time with the kids, but it is often about other things as well. Money is about paying the bills, but it is often about other things as well. We need to understand what those “other things” are, so we can help address them, whether with the concrete things like time and money or with less concrete things like expressions of gratitude, expressions of value as a parent, or acknowledgement of a spouse’s contributions to the life that the family built.
Sometimes for clients the negotiation of a divorce is actually emotionally about trying to redress the hurtful dynamics of the marriage after the fact. Some clients are trying to “fix” in divorce what they didn’t like about the marriage. In this dynamic, time with kids and money become a means of measuring gratitude, contrition, absolution, forgiveness, recognition, value and many other feelings that the parties do not feel were sufficient in the marriage.
There is no divorce process that can promise that old hurts from the marriage will be resolved or that all of the deeper needs of the clients will be met. But, in the intimacy of a divorce negotiation, identifying those proxies and the associated deeper issues is often the only way to remove them as barriers to a successful resolution of a divorce. Until they are uncovered and addressed, these deeper needs often serve as hidden barriers to resolution. This technique of getting to the heart of the matter instead of misguided arguing about proxies typically makes for more efficient, less drawn out, and therefore less expensive divorce negotiations in the collaborative process.
If you would rather efficiently address the heart of the matter in your divorce negotiation instead of just arguing about proxies, then consider the collaborative divorce process.
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