It is a good question. Especially if we consider our role to be that of boundary-setter; how can we negotiate without losing authority?

I think one of the hardest things for parents of teens to accept is that they cannot control their children at this age. Not their behaviour. Not their language. Not their appearance. Not their tendency to lie. Not their decisions to drink, stay out past curfew, smoke weed or paint graffiti.

Some parents find this alarming; and those are the very parents who experience the most conflict with their children.

In one of the books I have read, parents are advised to “never negotiate with a terrorist”. I could not disagree more. Teens who act like terrorists do so for a reason. The conflict we experience with them is a good thing; it shows that they need and want to remain engaged with us. If they did not care, they would just stop fighting. They need us, and so they maintain a connection through conflict. They are defining for themselves the boundaries of a healthy parent-child relationship, and that means they will at times act like terrorists.

So how do you negotiate with someone like that? First, by accepting and loving them, unconditionally, for who and what they are. By standing firm about your expectations of them, and letting them know that you will not accept a violation of the rules. By treating them like the responsible person you expect them to be. By being clear about the consequences of any breach of the rules. (You will need to decide for yourself whether punishment is an effective deterrent.) By being a thoughtful, calm, patient, non-judging and empathetic listener. And by being willing to flex when, after hearing them, they make some sense and help you realize that perhaps the rule should be bent or changed.

Negotiation with teens is not that much different from negotiation with any other difficult person; it just takes a willingness on the part of the parent to understand the needs of the person with whom they are negotiating. And teens have a very unique set of needs that are, thankfully, temporary.

It is wrong to assume, he says, that negotiation is always going to be the best choice for a client. The best conflict resolution strategy will depend on the circumstances. “What are your alternatives? Do you have a good legal remedy? If you do, what are the costs of pursuing it? How good are your chances of winning?”

His point is simple and directly applicable to family law. Before deciding whether to negotiate, mediate, litigate or sign a collaborative law agreement, every client should carefully assess the costs and benefits of each option.

And once a process is chosen, strategy ( when to negotiate positionally and when to negotiate based on each side’s interests, for example) should also be determined only after a careful diagnosis.

That of course is easier said than done. Assessing all the elements of one’s “alternatives” is complicated in divorce. Mnookin talks in the interview about the strong impact that emotions can have. Emotions, he says, get in the way of clear thinking. Emotions can make it hard for people to understand that a “win” for the other person is not necessarily a “lose” for them. Often, he says, we feel that “even if it is better for me, the notion that there should be an arrangement that’s better for them is bad because they deserve to be punished.”

This is why good family lawyers are trained to “screen” all new clients for, among other things, the personality and emotional state of both parties before recommending any process or strategy.

His bottom line is that most people should try to negotiate, even though they won’t feel like it. Negotiation means accepting that your long term interests may require you to abandon your “principles”; for many people, that is very hard to accept.

So, what negotiation process will work best for what clients? The blogs to follow– including those written by guest contributors like Victoria Smith and Ken Nathens, will try to answer that question. When is mediation worth trying? When might collaborative law be a good choice? When is traditional lawyer-lawyer negotiation the best option?

It wasn’t all that long ago (when I used to litigate in fact) that most people just found themselves a good family lawyer to handle it all for them. And most of the time, that meant using lawyers to negotiate and/or litigate in a costly and draining adversarial style.

The process and cost options for clients are so much greater now; and information about them is so much easier to access.

Which makes it harder for most people to know: what process is best for them?

This question was asked in a well-known article in 1994 called “Fitting the Forum to the Fuss: A User-Friendly Guide to Selecting an ADR Procedure.” In it, the authors examined the cognitive, strategic and structural barriers that make it difficult for two people to agree on a dispute resolution process, and also how the market for the provision of these services is flawed.

Since then, the use of mediation, arbitration, mediation-arbitration, collaborative law, cooperative law, and various creative combinations of these processes, has exploded in Ontario.

In this blog series, we will examine the various processes; how each works, what kinds of cases and people it is best suited for; and what its challenges are for those using it. We have lined up a number of well known lawyers and conflict resolution specialists to contribute to the dialogue. We hope you will comment too– as we try to help our clients find the best possible fit for them.

Like mediators, collaborative lawyers focus on finding workable solutions to meet the real needs of their clients. We deplore the kinds of adversarial negotiation tactics that escalate disputes and cost clients time and money unnecessarily. We believe in working as a team, to put all the information on the table that the parties need to make informed decisions. And we think that hiring third party “experts” in negotiation— such as financial or parenting experts– works best if it is done together.

As a mediator, I am always happy to hear that my clients will be working with collaborative lawyers. It makes for a good process because I know that the lawyers will be speaking my language. And the clients will know that their mediator and their lawyers are committed to the best possible process.

Mediators and collaborative lawyers know, from experience, that a good process is more likely to lead to a good outcome for all involved.

In my next blog I will write more about the benefits of collaborative law.

There is a great book by Roger Fisher and Daniel Shapiro called “Beyond Reason: Using Emotions as You Negotiate”. I love this book! It talks about the core emotional concerns that every person has, and how people in mediation or negotiation can get better results if they pay attention to, and try to meet, these needs for each person.

I was teaching an Advanced Level Mediation and Negotiation course last week, with some amazing colleagues: Dr. Barbara Fidler, Dr. Barbara Benoliel and Heather Swartz. We had a remarkable group of senior family lawyers, psychologists, and social workers in the room. We took a relatively common family law situation… separated couple, two teenagers, high emotion, a single incident of violence resulting in a criminal charge, and the resultant chaos for the family…. and asked the course participants to use a “circle process” to try to resolve the problems.

We use professional actors in our courses, and so the actors playing the children in particular were outstanding. It was incredible to see the difference when the co-mediators used a restorative “circle” process, instead of the usual, more formal mediation process used by most mediators. The emotions were intense for sure; but they were also real. And they allowed the parties to express what they were feeling and why. And through this very difficult experience the parents and children were able to really understand each other’s worlds better, which lead to some good ideas about how to move forward. Although it was all a role play, it was very much like the restorative justice conferences I have experienced in other contexts. Powerful and effective stuff.

I feel terribly for everyone affected by this tragic case. I feel for this poor couple and their child, for they were clearly in the wrong place at the wrong time. I also know the history of the land claim that is the important back-story to this dispute, and empathize with the first nations claim and the position of the occupiers of the land.

I can’t help but wonder: why did the parties not call a mediator? Mediation is an important part of the conflict resolution culture of the Six Nations. It is also an important part of our litigation culture. A mediated dialogue could surely have resulted in some understanding, some form of accomodation that was good enough for all. Why did the protestors not propose mediation with Mr. Brown and Ms. Chatwell? If they did propose it, why did it not happen?

This story illustrates the impact extreme emotions can have on a negotiation, and how difficult they can make it for people to react rationally to difficult circumstances. I think it also underscores the profound cultural differences at stake here.

When I read about the altercations that occurred, I start to imagine the many other endings this story could have had. I have to believe there was a time, at the very beginning of this dispute, when Mr. Brown and Ms. Chatwell and the protestors could have sat down together, discussed their respective concerns, and arrived at a solution that was better for everyone than what ended up happening.

Why did this not happen? I do not understand.

Most people, when negotiating, retaliate against selfishness more than they reward generosity. This is true even if the apparently selfish move is not what it seems.

This explains why conflicts can escalate so rapidly and unexpectedly. People often retaliate against even perceived slights, in a disproportionate way when compared to how they reward positive moves. These often wrong judgements lead to increasing retaliation as the negotiation progresses.

This theory has been tested in various studies over the years. For instance, in a recent study, some people were given $100 and others were given nothing. Those with $100 had $30 taken away from them; while those with nothing were given $50. Even though the people in the first group were in fact treated more generously, they felt as though they had been treated worse. As a result, they went on to treat the people in the next “round” of the study even more selfishly.

What does this tell us? If you feel you have been handed a raw deal, say so before deciding to retaliate. It may be just a misunderstanding. And if you are the instigator of the unfair deal, you may have to work a lot harder to make the situation right again.