What Hostage Negotiations Teach Us About Divorce Negotiations

Apr 7, 2014

As it turns out, a divorce negotiation is a lot like a hostage negotiation.   Just not in the way you probably think.


 I never would have thought about that.  But, a recent interview with a former FBI hostage negotiator in Men’s Journal made it apparent.  Gary Noesner’s interview in the April issue of the magazine gave six keys to effective negotiation under high stress situations.  Not coincidentally, these are the same rules that good collaborative attorneys and mediators follow when negotiating a divorce settlement.  Anybody going through a divorce would do well to keep these in mind, and to find an attorney who understands these techniques:




1. Don’t try to win





Noesner says “It’s not about getting you to comply with what I want or accept my point of view.  It’s about us working together to reach the best possible agreement we can.” 




Bingo.  A negotiation is, by definition, not a fight.  Nobody forces another person into agreement in divorce.  Fortunately, neither party in a divorce negotiation needs to agree with the other person’s point of view; they do need to understand that point of view, however.  The distinction between understanding a viewpoint and agreeing with it is crucial in negotiation.  And, any good divorce negotiation starts with the goal of finding the best possible agreement for everyone involved, including your kids. 


Any doubts about how well this works in divorce?  Noesner goes on to say “This applies to dealing with a boss or a wife, or any other relationship.  A win is a mutual thing.”




2. Keep your emotions in check





“Self control is essential when trying to influence someone’s decision making process.  If you get angry or display frustration, if your body language says you’re pissed off, you’ve lost already. “




Oh, how true this is!  In a divorce negotiation, all is not lost just because you show frustration or anger.  Anger and frustration are perfectly natural. But, there is a difference between feeling it, and showing it.  Displays of anger and frustration present an extra hurdle that has to be overcome.  Your anger and frustration is likely to be interpreted as criticism of your spouse and met with anger in return. 




The former hostage negotiator adds “But if you behave in positive ways, it has a tendency to be mimicked.  It’s hard to have an argument when only one person is arguing.”  The flip side of not showing anger and frustration is not taking the bait when your spouse gets angry or frustrated. 




Keeping emotions in check is so useful in a divorce negotiation that I recommend that clients use divorce coaches during the process.  The coaches teach clients tools and techniques for keeping emotions in check, at least when they are in the room with their ex-spouse.  This invariably makes the process more efficient and effective.




3. Keep THEIR emotions in check







“When people are argumentative and raising their voices, what they’re really saying is, ‘I want you to hear me. I’m angry.’ 




This is a hugely valuable insight.  Trust me, I know now hard it is to not respond to anger with anger.  I struggle with it just like everybody else.  But, if you can translate anger, argument and a raised voice from your spouse as them saying, “I want you to hear me.  I’m angry”, then you are helping your negotiation (and therefore yourself) immensely. 




What is the best way to respond to anger, argument and raised voices?  He says that you have to acknowledge the anger, “You sound really upset.”  You have to “Slow down and wait to articulate your point of view…When emotions are high, rationality is low.  Before you can gain cooperation, you have to lower emotions.”  This is another way of saying that angry and emotional people cannot hear you, and that you cannot hear others when you are angry or emotional.




As discussed above, high emotions create extra hurdles.  To get over the hurdle, you have to wait until emotions cool down, while using some communication techniques to try to help that process.  This is where skilled collaborative attorneys and divorce coaches prove their mettle; even if you cannot handle it all, your attorney and/or coach can use their techniques to cool people off (including you) and get back to business.   




4. Be a good listener





“Take the time to understand the other person’s point of view and you’re much more likely to be successful in getting what you want.”




This is the essence of interest-based negotiation.  It is the opposite of what people do in an adversarial negotiation.  It is hard to get someone to cooperate with you if they think you don’t care about their view of things.  More importantly, it is only through listening that you can learn your spouse’s ingredients for a resolution.  Those ingredients are half of the recipe for a resolution of your divorce. 




“Be open physically, too:  Face the person, make good eye contact, be attentive, and smile – it’s one of the most powerful influencing tools we know.”




This is an advanced skill that takes time to master.  Our body language is so subconscious that it takes practice to become aware of it.  Good negotiators and collaborative attorneys are highly aware of their body language.  And over the course of your negotiation, you may become more aware of yours.




5. Start small





“If you treat an argument like a zero-sum game, it prevents you from taking a more appropriate intermediate step, which is, ‘Let’s find some common areas.’ 




Instead of jumping off with one-sided demands, “Tackle the issue that has the best chance for compromise.  Lock that one down, then move on to the more difficult ones, knowing they may not be solvable.”




Noesner is hitting on the ideas of “win-win” solutions and building momentum.  “Win-win” has been overused in the pop culture lexicon.  But, it is still a very important concept.  The reality is that your spouse is not going to agree to a resolution if he or she believes it represents a win for you and a loss for them. 




The other point is that starting a negotiation with the most difficult issue can doom the discussion before it starts.  Reaching agreement on smaller, less contentious issues builds goodwill, trust and momentum that help with the harder issues.




6. Give to receive





“If you demonstrate a willingness to be open and flexible – that you’re willing to meet halfway, that there are aspects of your position you might modify – its puts a burden on them.  It’s like saying “It’s your turn to show that you, to, can be sensible.”




This creates a dynamic in which the other person can say “OK, this person has stepped out on a limb; they’re willing to work with me.  Now I have to show something.”




This is also part of building trust, goodwill and momentum.  Every agreement requires some degree of compromise.  And, a little compromise at the right time can make all the difference in the world in a divorce negotiation.  I have seen spouses act very generously towards each other in a divorce negotiation because they each perceived the other to be willing to compromise.  The phenomenon Noesner describes is real, and powerful. 




The best part for me is that all of these tips are integral to what I do:  collaborative divorce, mediation and settlement negotiation.  It is just further proof that the tenets of what I do are universal and proven in so many different high stakes, high stress negotiations. 




I know that some divorce attorneys scoff at the techniques described by this former hostage negotiator; they say you have to play “hardball.”  And, in some small percentage of cases, hardball may be the only option. But, if someone in my family were taken hostage, I’d put my trust in these techniques instead of hardball.  And if I were to face a divorce, I would put my trust in an attorney that understood that these techniques work better than hardball.

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