Introduction
Negotiation is more challenging in the legal context than in any other area since it impacts the result of the litigation. For individuals involved in a divorce, moral as well as ethical behavior and resolving matters of sharing property bring dilemmas. Complex situations raise the topic of handling divorce whereas maintaining an amicable association between former intimate partners. The circumstances process impacts the context of a spouse’s situation with adjustment problems, the presence of other factors such as poverty and unemployment, children, and personal relationship amongst spouses.
All factors need to be considered as part of the family relationship. It is important to consider as well as separate every category and determine the nature of the factors’ impact on the negotiation’s outcome. The factors will impact the emotional side of the negotiation, the possibility of communication when there are conflicts, and trust between participants regarding finances and children. While negotiation is essential, various approaches have benefits or weaknesses. For example, there are distributive, collaborative, and integrative strategies. The collaborative approach means that the negotiator concentrates on the interests, concerns, and needs of both parties involved.
In a distributive negotiation, the attorney argues that the interest of their client is served through a strong argument that upholds their view with less concern about the other party. In integrative negotiation, a lawyer claims that their client’s interests are best served when a solution integrates what is essential to all. The main of this paper is to analyze the issue of negotiation in complex settlement issues during a divorce. It begins by studying analysis of the issue of negotiation between divorcing spouses who have settlement issues, checks on the divorce rate in the U. S., and state laws on division of assets. Additionally, it continues by discussing negotiation concepts, approaches to negotiation, best alternative to a negotiated agreement, and mediation.
Negotiation between Divorcing Spouses Who Have Complex Settlement Issues
Analysis
Negotiation in law is a more challenging endeavor than in other areas since it possesses the ability to impact a court case. For individuals undergoing a divorce, issues such as property sharing and moral and ethical behavior always emerge. In most cases, there is a conflict when discussing the division of household as well as responsibilities for children, payment of child support, and the nature of meetings between parents or guardians and their children. Many try and fail to maintain an amicable relationship during this whole process. The most vulnerable individuals involved in such cases are children, who are mainly affected mentally, socially, and even financially when parties cannot agree on a certain amount meant for the child support.
Divorce Rate in the United States
Divorce in the United States is a lawful procedure whereby a judge dissolves marriage between two people. It restores individuals to single status and allows them to marry again. In the country, issues related to divorce and marriage are under the jurisdiction of state governments. Even though they are often consequential, divorce may result in matters such as child support and custody, spousal support, property distribution, and dividing debt. Research shows that women request a divorce from their spouses more often than men in the U.S. (Alola et al., 2020). As seen in figure 1, twenty-nine percent of first marriages within the ten years’ period, as of 2015, were dissolved (Alola et al., 2020). It is believed that half of the total marriages in the country ultimately end in a split (Alola et al., 2020). In any particular year, the number of marriages is twice that of divorces.
Another study determined that the divorce rate is influenced by the race factor of couples. For instance, the chance of divorce for interracial spouses to that of same-race was compared (Asmadi & Abduh, 2021). The results revealed that the former has a higher probability than the latter (Asmadi & Abduh, 2021). In interracial dynamics, it is the gender that significantly determines the outcome (Asmadi & Abduh, 2021). Based on the modified models forecasting divorce as of the tenth year of marriage, this type of marriage is vulnerable, especially where the female is White and the male is non-White (Dutta, 2021). Such cases are twice as probable to dissolve within the ten years period compared to White and White couples.
On the contrary, when a husband is White, and the wife is non-White, there is less chance of divorce within the particular period established above. In marriages with Asian wives and White husbands, only four percent are likely to divorce by the tenth year after marrying (Ferrari et al., 2019). Marriages between Black females and White males divorce forty-four percent probable within the same duration (Ferrari et al., 2019). In instances where marriages failed to cross a racial barrier, such as Whites marrying Hispanics, the rate of divorce was similar to those of the White and White couples (Ferrari et al., 2019). As mentioned earlier, the state governments are in charge of the dissolution procedure (Ferrari et al., 2019). This means that where one resides determines the terms of the divorce.
State Laws on Division of Assets
States vary in the rules for dividing assets after a divorce. The chief difference is between those that utilize a community property system and others that do not. In community property states, it is believed that spouses have an equal claim to the community property (Lande, 2018). Arizona, Idaho, New Mexico, and California comprise the states that apply the concept of community property. In Alaska, the law gives couples an alternative to creating community property by reaching a written agreement (Lande, 2018). The majority of such states are under the presumption that the assets will be shared equally, whereas equitable distribution dictates means about half of the assets are awarded to a single spouse.
It is common that assets obtained before marrying are viewed as individual while those after are considered marital. Depending on a particular state, the equitable division is thereafter sought (Laufer-Ukeles, 2020). In instances where children are involved, the state governments have a pressing interest in guaranteeing that conflicts between spouses do not reach the family court. Each state now requires parents to organize a parenting plan, decide who has custody of the child, and arrange for visitation through a court hearing or written agreement (Nguyen et al., 2018). The person with custody may get assets to ensure the expenses of the child are compensated.
Negotiation Concepts in Divorce Settlements
A recurring discussion is whether positive results are attained by tough negotiators who target what benefits them at the cost of other people or by compassionate individuals who concentrate on what is essential to others. The debate about what should constitute a proper negotiation was highlighted in the last Presidential election (Lewicki, 2019). It happens in claims made by various divorce attorneys (Lin & Brown, 2021). The majority of litigation-centered legal representatives trust that better outcomes are accomplished by strongly arguing to the point that the opponent concedes (Lin & Brown, 2021). They argue that the interests of their clients are served through great advocacy that fosters their perspective with less regard for the interests of the other party.
The above approach is usually called distributive negotiation and has been applied several times. By comparison, many collaborative attorneys, as well as mediators, trust that better outcomes are obtained by concentrating on the interests, concerns, and needs of both parties involved. This type of lawyer claims that their client’s interests are best served when a solution applied integrates what is essential to every party. The approach is described as integrative negotiation. The discussion is often based on individual opinions and anecdotes. As it occurs, negotiation has been the subject of research, which offers a definitive answer.
Research shows that the majority of the problem-solving occurs when a negotiator has a high concern about the other party. However, this is only when they can have what is vital to themselves (Knight, 2018). The thought process is most effective when the interests of every person are considered, and negotiators do not capitulate on important issues (Knight, 2018). According to the study, the negotiators had consistent and substantive results (Knight, 2018). When a negotiator has a high concern about other parties, but their accommodating exceeds, they may obtain negative outcomes. In other terms, surrendering the important parts in a negotiation can create an unwanted result.
Research shows as well that accommodating increases the contention level in discussions. Distributive negotiation appears to hinder problem-solving; thus, most negotiators who choose to apply this approach reach an impasse more often than other styles (Knight, 2018). Without the high risk of a negotiation reaching a stalemate, the disadvantage is not as harsh as the over-accommodating integrative approach (Meyer et al., 2022). For divorce discussions, the study has major implications (Meyer et al., 2022). The first one is that the integrative negotiation style will most often attain great outcomes. When carefully implemented, it is less contentious and leads to enhanced substantive outcomes than the distributive style.
Secondly, the appropriate problem-solving for optimal outcomes happens only after both parties; views and goals are differentiated and well comprehended by everyone. Therefore, problem-solving can consider those differing perspectives and goals while exploring potential solutions (Nguyen et al., 2018). Thirdly, those benefits disappear when integrative negotiation is not skillfully executed (Nguyen et al., 2018). This style is advantageous on the condition the negotiation can emphasize a focus on the association as well as maintain a high resistance to yielding (Zartler, 2021). When one party accommodates the other exceedingly, the problem-solving is hindered, and the outcome is not better than the one produced by distributive negotiation.
When a party avoids or is afraid of conflicts, problem-solving is as well hindered. Fourth, for the majority of divorce clients, qualified professional assistance will be required to work in a Goldilocks zone (Nguyen et al., 2018). Unless maintained on track, combining strong emotions such as shame and fear, an impaired capacity to interact effectively, and the sense of disempowerment can conspire to pull divorce clients to be exceedingly accommodating. Moreover, many of them may lack the understanding of what is needed for integrative negotiation.
Integrative negotiation, at times referred to as collaborative negotiation or win-win, is a bargaining style where the negotiating parties try to reach a mutually beneficial solution. This approach is better than distributive negotiations as it can involve several issues (Oldham, 2018). For instance, a reputable fashion business and a cosmetic brand agree to work together on a product geared toward their common target audience (Oldham, 2018). They negotiate an agreement that enables the startup cosmetic to gain more exposure and the fashion business to reach its fiscal and marketing objectives.
In the context of divorce and settlements, both parents can choose to collaborate and create a parenting plan that ensures each sees the child every week. Additionally, they can decide to check on how each one benefits from the property available (Quek Anderson et al., 2022). They work to guarantee that the individual having the child has a place to stay. When it comes to an issue such as alimony, in this approach, the parties will agree on an amount depending on the financial situation of the husband (Rios, 2019). For example, he might still be paying debt and thus, being more lenient would be proper. Some of the tips one can utilize in an integrative approach include taking a principled approach, discussing needs and interests openly, and bargaining to solve problems.
Fifth, to offer help to clients, it is required that a collaborative divorce professional obtains skills and knowledge to overcome a tendency to avoid conflicts. Both in the school of law and practice, it is almost impossible to find lessons on integrative negotiation (Lewicki, 2019). If one does not deliberately try to learn and maintain those skills, they may be incapable of leading a client to reach the Goldilocks Zone (Speaker, 2021). In addition to the above, another important concept that can be introduced in the discussion of divorce settlements is the Best Alternative to a Negotiated Agreement.
Best Alternative to a Negotiated Agreement
In divorce mediation, when someone assesses their best alternative, it means that they are checking for the best as well as worst outcomes in the event the dispute is to be decided by a judge. Obviously, it is usually difficult to forecast what would occur in court, which is why mediation is sensible, as it allows individuals to maintain control over those decisions that affect them the most. However, people still refuse to consider mediation (Quek Anderson et al., 2022). According to many of them, if their partner is unwilling to attend mediation, it is either due to not being ready to proceed with a divorce, or they do not trust the process completely.
In such cases, it is proper that the mediator ask that partner whether or not the other party is likely to change their mind and remain in the marriage. While it is human to sympathize with the party that desires to remain in the marriage, the mediator must tell them plainly that the other party initiating the divorce will soon find an attorney. In the event one wants to maintain control over the decisions that are going to have a great influence on life and they desire to avoid spending much engaged in a legal battle, it appears that the BATNA is to reach an agreement with the other party.
Negotiation vs. Mediation
Since both negotiation and mediation have been discussed above, it is important to understand the differences between the two. For instance, on the one hand, the former is a technique used to resolve any disputes by self-counseling and discussion between the parties. In this scenario, a mutually benefiting agreement is sought. On the other hand, mediation involves a third-party facilitating discussion and suggesting other solutions. Secondly, whereas negotiation cannot involve the intervention of a neutral third party, the mediator is given consent to discuss the matter to ensure a fitting solution is found.
When it comes to meetings, the parties’ representatives meet to relay their demands and interests and engage about their privileges. In mediation, the mediator meets parties jointly and separately to discuss the cause of the problem and recommend solutions. Lastly, in negotiation, the interests are reported either by the members themselves or those appointed. Conversely, in mediation, a mediator represents the concerned parties’ interests.
Summary and Conclusion
The paper has analyzed the issue of negotiation in complex settlement issues during a divorce. It has been established that there is an ongoing debate concerning whether positive results can be attained by toughly negotiating. This is done by individuals who target what is benefiting them at the expense of others’ interests or welfare. Additionally, it is believed that negotiation with the interests of other parties at heart can yield such outcomes. As mentioned above, while negotiation is essential and, most of the time, compulsory, there are various strategies negotiators can adopt. The approaches include distributive, collaborative as well as integrative strategies. The paper explains the collaborative approach as when a negotiator concentrates on the interests, concerns, and needs of both parties involved. The distributive negotiation is described as the attorney arguing that the interest of their client is served through a strong argument that upholds their view with less concern about the other party. Lastly, in an integrative negotiation, an attorney claims that it is only when everyone’s interests are considered that their client will be well served. Information in the paper shows that negotiation in law is a more challenging endeavor than in any other area since it possesses the ability to impact a court case.
Conclusion
The paper has clearly shown that negotiating a settlement is a challenge. For individuals undergoing a divorce, issues such as property sharing, and moral and ethical behavior, always emerge. Most times, there is a challenge while examining the division of family as well as responsibilities regarding children, installment of their support, and the idea of meeting between parents and their children. Many cannot keep a friendly relationship during this entire cycle. The weakest people engaged in such cases are children, who are predominantly impacted intellectually, socially, and even monetarily when individuals cannot consent to a specific sum implied for the care of the kid. On occasion, exchanges are not productive, or one party actually wants to remain in the marriage. The paper presents the idea of the best alternative to a negotiated agreement.
In divorce mediation, when someone assesses their best alternative, it means that they are checking for the best as well as worst outcomes in the event the dispute is to be decided by a judge. It is generally hard to figure out what would happen in court, which is the reason mediation is reasonable, as it allows people to keep up with control over such decisions that influence their lives. In any case, individuals actually decline to think about intercession and could seek further actions quickly. In the event their spouse is reluctant to go to mediation, it is hence essential to think about doing the same and continuing with the divorce procedure.
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