What are the first steps to separation?

In Short

• separation is a difficult time and when there are children involved, how the separation is managed can deliver immediate results.

• understanding grief and loss of the relationship and how separation impacts the “leavers” and the “left” differently

• the importance of developing a new co-parenting relationship to move forward. 

• people who engage with the process stay in control of their experience.

Separation and children

When a relationship breaks down and there are children involved, it is a very difficult time for everyone. Where there is domestic violence, the initial separation and the period immediately following can be very dangerous and people should seek specialised support to help navigate their separation.

Following a separation there are many questions that need to be answered and often emotions are high and people don’t find it easy to agree on some of the most important questions such as who will the children live with and when will they spend time with the other parent. 

People often are concerned about telling family and friends and it is very important to manage these relationships for the sake of the children.

Separation can impact on friends as they may feel forced to “choose” who they support. How people manage this challenge can impact on the support they are able to receive from their friends as they progress through this period in their lives. 

Care around the language to your family and friends around the circumstances of the separation can help children manage and deal with the separation by helping them stay out of the conflict.

Seeking help early in the separation process to manage the conflict if people can’t agree, can help people stay in control. They can be supported to come together and make good interim decisions that are focused on meeting the needs of the children right now, while enduring one of the toughest emotional times that people experience.

The “leaver” and the “left”

When I ask clients how the separation occurred many people tell me something along the lines of…., “I just came home one day and they were gone and they had taken the children” or “I couldn’t stand it anymore, I had to get out”.

An important component of preparing for mediation is to understand how the relationship ended and identifying who was the “leaver”  and who was “left” and how long ago this occurred. This is important because it helps me to understand where clients may be in the grief cycle. 

People who leave tend to start the grief process earlier. They start to grieve the loss of the relationship, often even before they make a physical move to change their environment. The person who is left will then go through the stages of the grief process later compared to the leaver. Understanding this dynamic is important as it can help me understand why some people seem able to leave their disappointment/grief behind and can move forward and others may not be at that same point yet.    

The intake session allows me to understand the readiness of each client, so I can understand whether they are ready yet to move from blame, anger and so forth to move forward to constructing a “new relationship”.

Parents not partners

It may seem obvious that following separation the relationship will change, but people who are able to focus on the needs of the children, are more easily able to understand and construct a new relationship that meets those needs.

Often this looks and feels more like a business arrangement made in the best interests of your child.

This helps people reconsider how they communicate. If it was a business relationship you wouldn’t expect to text at all hours of the day and night. You would expect to communicate in a more formal way, being aware of the impost on the other person of numerous texts at all hours of the day and night.

If it was a business relationship, you would foster flexibility because at some stage you might expect to need arrangements to be flexible to meet your needs if something comes up. Parents who are able to understand the importance of flexibility going both ways are able to build a stronger co-parenting relationship that will flex with them as their circumstances change.

The business relationship concept also helps to understand another area that comes up, personal boundaries. What may have been OK before ,might now feel uncomfortable. Constructing a strong co-parenting relationship will help parents to negotiate other changes that may be necessary such as when someone becomes involved with a new partner. 

The impact on the children 

How parents communicate with each other affects the children. Whether changeovers are frosty, or children witness their parents arguing or worse, they see and overhear violence and witness its effects, it all has an impact on the children. 

Domestic violence includes physical, sexual, emotional, psychological abuse but also includes financial deprivation and social and cultural isolation.  

A range of studies have found that exposure to domestic and family violence can affect a child’s mental wellbeing and contribute to poorer educational outcomes and a range of behavioural issues. These may include impaired cognitive functioning, behavioural problems, poorer academic outcomes, learning difficulties, depression and poor mental wellbeing, low self-esteem and bullying (both as victim and perpetrator).

What can you do to minimise the effect on the children?

The number one consideration needs to be, what is in the best interests of the children?

In mediation when I ask people what brought them to mediation, they often say something like…”I want the children to live with me”. 

Parents who can focus on meeting the needs of their children, before meeting their own needs, are more easily able to focus on coming together to identify solutions that will meet the needs of the children but also can be accepted or “lived with” by the parents.

It may not be easy to have these conversations and you may find you need the assistance of someone to help these conversations move forward and remain focused on the children’s needs, especially if people are at different points in their grief cycle.

Mediation

As a mediator, I facilitate a conversation between two or more people who have an ongoing relationship (like parents) which means that they can’t just stop communicating with someone when they don’t agree.

I focus on providing a safe environment and helping the people communicate and remain focused on the future. I help them develop a new relationship, set the rules and expectations for communication etc and help people move forward as co-parents.

Depending on the dynamics of the relationship, it may be more productive to conduct the conversations via “shuttle” whereby the mediator talks with each person separately and moves between the rooms to progress the conversation, when it is not productive (or safe) to be in the same room. 

Mediation can also be conducted virtually via Zoom where it is either not practical for people to be in the same room or also when people do not feel safe to be in the same room.

Mediation with me

The unanswered questions may be uncomfortable, as may be the insecurity that results from people undergoing separation, but the mediation process does not have to be. 

I meet with my clients first and I tailor an environment specifically to meet their needs, called an Intake Session.  I then assess whether mediation is suitable and put in place any necessary safety measures. The Intake also allows me to help people make the most of their mediation experience by ensuring they are well prepared for the mediation.

Typically we run from difficult and uncomfortable emotions in day to day life, but with the right skills people can learn how to handle conflict better. I focus my practice on providing services to bring people together when conversations are difficult. Clients can expect that I will be a strong facilitator, manage the conversation so everyone feels safe, but yet be kind and compassionate.

Typically, one-third of people who separate reach agreement on their own. Two-thirds need some support from lawyers and/or mediators to negotiate an agreement. One-third need a court to make a decision so they can move forward, a decision that they have no choice but to accept. 

What are your children seeing and hearing? How are your changeovers, friendly and warm, or frosty and cold? How does it make your children feel when they go to changeovers, safe and secure or like they are on rocky and shaky ground?  

If you need a hand to navigate through the conflict of separation and develop your co-parenting relationship, drop me a line or send me an email and we can catch up for a chat and I can talk to you about whether mediation is right for you.

Early Use of a Threat Debilitates Your Negotiating Power

Understanding Negotiating Power in an Evolving Covid World

Covid has thrust all of us into unchartered territory at work and in business. People are fatigued, yet there continues to be many new challenges arise. Spending a moment to reflect on negotiating power could help turn a difficult conversation into an opportunity.

Organisations requiring their staff to be vaccinated could be perceived as a threat by some employees. Refusing entry to unvaccinated clients could also be perceived as a threat by customers. Roger Fisher discussed the debilitating effects of negative commitments, especially threats made at an early stage of negotiation in his article, “Negotiating Power, Getting and Using Influence”. So how do you prepare for these difficult conversations?

“its all very well, it is said, to tell people how they might jointly produce wise outcomes efficiently and amicably, but in the real world people don’t behave that way; results are determined by power – by who is holding the cards, by who has more clout.”

WHO IS HOLDING THE POWER RIGHT NOW? WILL THAT CHANGE OVER TIME?

Fisher discussed the use of a credible threat as one element of power that can be used. Fisher explored the debilitating effect of making threats at an early stage. He discussed five other elements of power and the importance the sequence the elements of power should be used to maximise their cumulative impact. Fisher defined “negotiation” as including all cases in which two or more parties are communicating, each for the purpose of influencing the other’s decision.

The next important step is to identify “negotiating power”, Fisher discusses negotiating power to exist if I have the ability to affect favourably someone else’s decision, but he also acknowledges that my power depends on someone else’s perception of my strength, so it is what they think that matters, not what I actually have. Negotiating power is all a matter of perception.

MISTAKEN VIEWS OF NEGOTIATING POWER

(1) Physical Force = Negotiating Power

Fisher explains that making threats is a particularly expensive and dangerous way of trying to exert influence. The pain that we threaten to inflict if the other side does not decide as we like is simply one factor among many. Fisher explained that negotiating power could be enhanced by the combined potential of all negotiating powers, force being one. Do you understand the other elements of power and how you can use them in your circumstance to influence others, rather than just threaten?

(2) “Start tough, you can always get softer later”

Should you start off flexing your muscle, with a hard line? Fisher discussed that even though this might work with positional bargaining, like the higher a price one demands or the lower a price one offers, the more favourable an agreed result is likely to be. This is very different when it comes to threats, he explains the more firmly one is committed at an early stage to carrying out a threat, the more damaging that threat is to one’s negotiating power.

So, how can you enhance your negotiating power with this in mind?

Fisher developed a checklist for negotiators:

1. The power of skills and knowledge;

2. The power of a good relationship;

3. The power of a good alternative to negotiating;

4. The power of an elegant solution;

5. The power of legitimacy; and

6. The power of commitment.

1. The power of skills and knowledge

Knowledge about the facts. It is impossible to appreciate the importance of unknown facts.

Fisher discussed the importance of being a skilled negotiator, the ability to listen, to become aware of the emotions and psychological concerns of others, to empathise, to be sensitive to the other’s feelings and one’s own, to communicate clearly and effectively.

Fisher discusses the importance of other skills such as analysis, logic, quantitative assessment and the organisation of ideas. The more skill a negotiator has, the more power they will have as a negotiator.

The importance of knowledge relevant to a particular negotiation is powerful. Knowledge of the people involved, understanding the issues at hand, their values, career hopes etc.

What are the interests in the negotiation, think about the other side, what are their personal concerns, their fears, their needs? How does that relate to the interests on your side?

Knowledge about the facts. It is impossible to appreciate the importance of unknown facts. The more that is known about the facts and the background of the problem, as well as how it sits within the legal, social and political implications, the more likely it is creative solutions can be developed according to Fisher.

2. The power of a good relationship

If you are going to persuade someone to change their mind, you first need to understand where their minds are

“The better the working relationship established with those with whom I will be negotiating, the more powerful I am”, according to Fisher. He goes on to explain that the two most critical elements of a working relationship are first, trust and second, the ability to communicate easily and effectively.

It is easy to focus on whether or not you can trust those on the other side, but Fisher says that your power depends on whether or not they can trust you. Fisher explains that your capacity to exert influence is significantly enhanced if you can establish a well-deserved reputation for candor, honesty, integrity and commitment to any promise you make.

If you are going to persuade someone to change their mind, you first need to understand where their minds are, otherwise according to Fisher, you are shooting in the dark. The longer people have known each other, and the more broadly and deeply each understand the point of view and context from which the other is operating, the more likely they can communicate easily and with a minimum of misunderstanding, says Fisher.

It is important to consider the importance of a good working relationship to the outcome that you are seeking prior to negotiating. You may be able to negotiate the terms of a deal, but what impact will that have where you have an ongoing relationship like in a workplace? If you negotiated hard on the price for a sale, but you ruined the relationship in the process, what does that mean when you ask for an extension of time to settle? How important is the relationship, now and later? How can you negotiate this issue and build the relationship?

3. The power of a good alternative to negotiation

How well can you do for yourself if you walk away?

How well can you do for yourself if you walk away? Fisher discusses the importance to develop and improve your “BATNA” – your Best Alternative To a Negotiated Agreement. Before negotiating, you should consider the alternatives if you are not able to negotiate an agreement and to improve that option as much as possible.

In a workplace, for an employer this could be if my employees leave, how readily can they be replaced and at what cost to the organisation. Conversely, employees could investigate alternative employment options available to them.

4. The power of an elegant solution

Negotiators battle like litigants in court, advancing their own argument for a result that will take care of its interests but would do nothing for the other side.

The more complex the problem, the more influential an elegant answer. Negotiators battle like litigants in court, advancing their own argument for a result that will take care of its interests but would do nothing for the other side.

Brainstorming in preparation many options designed to meet as well as possible the legitimate interests of both sides. Brainstorming enhances your negotiating power by enhancing the chance that you will be able to devise a solution that amply satisfies your interests and also meets enough of their interests to be acceptable to them.

Power of a mediator is working with the parties to an ingenious solution that reconciles reasonably well the legitimate interests of both sides. Either negotiator has similar power to effect an agreement that takes care of his or her interests by generating an option that also takes care of some or most of the interests on the other side.

5. The power of legitimacy

To be persuasive, a good negotiator should speak like an advocate who is seeking to convince an able and honest arbitrator, and should listen like an arbitrator, always be open to being persuaded by reason.

Fisher believes that you can substantially enhance your negotiating power by searching for and developing various objective criteria and potential standards of legitimacy in the eyes of the other side, like a result ought to be accepted because it is fair; because the law requires it; because it is consistent with precedent, industry practice or sound policy considerations.

To be persuasive, a good negotiator should speak like an advocate who is seeking to convince an able and honest arbitrator, and should listen like an arbitrator, always be open to being persuaded by reason. Being open to persuasion is itself persuasive.

Fisher suggests researching precedents, expert opinion and other objective criteria, other theories of what ought to be done, so as to harness the power of legitimacy – a power to which each of us is vulnerable.

6. The power of commitment

the earlier you make a negative commitment – the earlier you announce a take-it-or-leave-it-offer – the less likely you are to have maximised the cumulative total of the various elements of your negotiating power

All previous kinds of power can be worked on prior to the formal negotiations. The planning of commitments and making arrangements for them can also be undertaken in advance, but making commitments takes place only during what everyone thinks of the negotiation itself.

a) Affirmative commitments

(i) An offer of what I am willing to agree to.

(ii) An offer of what, failing agreement, I am willing to do under certain conditions.

Fisher discusses that affirmative commitments are decisions about what someone is willing to do, it is an offer. These offers may have time limits, but while the offer is open it carries some persuasive power.

Fisher believes this is where it all comes together, the terms of the offer should be formulated based on the skills and knowledge that has been developed; it will take into account the nature of the relationship; will consider the walk-away alternatives each side has; the offer will constitute a reasonably elegant solution to the problem; and the offer will be legitimate.

It is only after all the power of the above has been found to be unsuccessful that Fisher suggests as a last resort that a negotiator has one other form of power, that of a negative commitment, or threat.

(b) Negative commitments

(i) a commitment that I am unwilling to make certain agreements,

(ii) a commitment or threat that, failing agreement, I will engage in certain negative conduct.

Importantly Fisher outlines that the earlier you make a negative commitment – the earlier you announce a take-it-or-leave-it-offer – the less likely you are to have maximised the cumulative total of the various elements of your negotiating power.

Fisher explains that premature negative commitments weaken rather than strengthen our negotiating power. Negative commitments at an early-stage shift attention from attractive alternatives to negative commitments that invite the other side to engage in a contest of wills by making commitments that are even more negative.

Before you make that pressing decision in your organisation or approach a supplier or client, jot down this checklist and spend some time considering these elements of power prior to the conversation and see how long you can keep the conversation in the positive commitment space before having to resort to negative commitments or threats.

For further reading I recommend Roger Fisher’s books, “Getting to Yes” and “Getting to Yes With Yourself”.

Article referenced, “Negotiating Power, Getting and Using Influence” was published in the American Behavioural Scientist, Roger Fisher, Harvard University.