Recently in Negotiation Category

June 3, 2015

CAUTION: Don't Text While Divorcing

CAUTION: Don't Text While DivorcingI was recently sitting at my desk when I received a text message from a phone number I didn't recognize. In rapid succession I received the following missives:

  • "I don't respect people who hit children."
  • "You belong in jail for the rest of your life!"
  • "Where you can hit a woman!"
  • "LMAO, who's not on parole!"
  • "How pathetic what a cheater you are too."

This person, who was obviously in distress around a family law matter and possibly even dealing with domestic violence, was exhibiting a habit I see often with my clients: Talking to a spouse or partner directly becomes so emotionally difficult, they start using text messages as their main source of communication. While it can feel easier or safer to express difficult feelings by text or email, separating and divorcing couples should use these methods of communication only if they are careful about what they are writing before hitting the send button.

When we communicate electronically, we lose the ability to hear and see voice tones, body language and facial expressions, which are all things that activate a region of the brain called the amygdala and which tell us whether we are safe or whether we need to fight or flee. When I see email or text exchanges between my divorcing clients, I'm usually struck by how something I consider a simple miscommunication can be interpreted by my client as a slight or some other type of threat. Oftentimes, the party in receipt of that "threatening" email reacts in a way that inflicts similar pain. And from that place of polarized conflict the two parties spiral into a vortex of even more contentious messages and misunderstood intentions. The good news is that there are ways to stop electronic conflicts from escalating.

Bill Eddy, who founded the High Conflict Institute, has developed what he calls the "BIFF Response" method of responding to electronic communications. He recommends being Brief, Informative, Friendly and Firm:

  • Keep your response brief. This will reduce the chances of a prolonged and angry back and forth. The more you write, the more material the other person has to criticize. Keeping it brief signals that you don't wish to get into a dialogue. Just write your response and end your message. Don't take their statements personally and don't respond with a personal attack. You don't have to defend yourself to someone you disagree with.

  • The main reason to respond to hostile mail is to correct inaccurate statements which might be seen by others. "Just the facts" is a good idea. Focus on the accurate statements you want to make, not on the inaccurate statements the other person made.

  • Avoid negative comments. Avoid sarcasm. Avoid threats. Avoid personal remarks about the other's intelligence, ethics or moral behavior. If the other person has a "high-conflict personality," you will not be able to reduce the conflict with personal attacks. You will only make the situation worse. High-conflict people feel they have no choice but to respond in anger - and keep the conflict going. Personal attacks rarely lead to insight or positive change.

  • While you may be tempted to write in anger, you are more likely to achieve your goals by writing in a friendly manner. Consciously thinking about a friendly response will increase your chances of getting a friendly - or neutral - response in return. If your goal is to end the conflict, then being friendly has the greatest likelihood of success. Don't give the other person a reason to get defensive and keep responding.

  • You do not have to be overly friendly. Just make it sound a little relaxed and non-antagonistic. If appropriate, say you recognize their concerns. Brief comments that show your empathy and respect will generally calm the other person down, even if only for a short time.
  • FIRM

  • In a non-threatening way, clearly tell the other person your information or position on an issue and let them know that's all you are going to say about it. Be careful not to make comments that invite more discussion, unless you are negotiating an issue or want to keep a dialogue going back and forth. Avoid comments that leave an opening, such as: "I hope you will agree with me that ..." This invites the other person to tell you "I don't agree."

Adopted from the High Conflict Institute:

If you're in the middle of divorce and using mediation or collaborative law, you are likely very conscious of the way you are communicating with your spouse in the presence of the mediator or lawyers as you work to move toward a resolution of your differences. By keeping the BIFF Response method in mind, your text and email exchanges can support all that hard work you're doing to achieve a divorce that is non-adversarial.

To learn more about non-adversarial divorce, contact me here.

Vacca - image - headshot - skt - apr 18 2013.jpg

Andrea Vacca
570 Lexington Avenue
Suite 1600
New York, NY 10022

June 3, 2013

Mindfulness as a Tool for a Less Adversarial Divorce

Midnfulness image.jpgDivorce can be an overwhelming experience. For most of us the days are full enough, yet divorcing couples are confronted with finding the time to fit in things they would not normally need to do, like meeting with attorneys and working on post-divorce budgets.

I recently discovered an author named Jon Kabat-Zinn whose book Wherever You Go, There You Are: Mindfulness Meditation in Everyday Life can be useful to people going through a divorce - or any stressful event.

Mindfulness is being aware of where you are in the present moment and being present in the moment.

A direct route to the state of mindfulness is through the practice of meditation.

  • Meditation is the practice of quieting the mind.
  • It does not have to be religious in any way.
  • Meditation can be done in any physical position.
  • People can benefit from as little as 3 minutes of guided meditation.

Cool Minds Negotiate Better

Achieving mindfulness in a collaborative divorce or mediation setting can make the difference between an impasse and a constructive compromise. For instance, if you find your heart skipping a beat and your throat tightening while you are talking about a particular issue, these changes can be taken as indicators of anxiety which, for you, may mean you will say or do something out of anger - or perhaps it means you will withdraw to such an extent that nothing can be resolved. Both of these extreme reactions are understandable under stress, but neither of them are helpful when your goal is to come to a fair and equitable agreement.

Becoming More Focused

One of the benefits of quieting the mind is that options become clearer. The analogy of muddy water is often used - if left alone, the mud will eventually settle to the bottom and the water will become clear. In a divorce, you're being asked to make many decisions about many issues you never thought you would be thinking about. The choices and options can seem overwhelming.

  • Should you mediate or collaborate? Or is litigation the best option?
  • What parenting plan is best for your children? Should they reside with one parent primarily or with each parent equally?
  • Should you sell the home you've been living in or should one spouse buy the other out of his or her share?
  • What amount of spousal support is needed? How long will it be paid?

Mindfulness techniques will not help you solve every problem in your divorce. The point is that these techniques will make it easier to handle difficult and uncomfortable situations, help you see the choices more clearly, and facilitate faster recovery.

Not only will you feel less stressed as a result of easier negotiations, it will also save you time and money.

Other books by Jon Kabat-Zinn include:

  • Full Catastrophe Living: Using the Wisdom of the Body and Mind to Face Stress, Pain and Illness___________
  • Mindfulness Meditation for Everyday Life. Piatkus, 2001. ISBN 0-7499-1422-X.
  • Coming to Our Senses: Healing Ourselves and the World Through Mindfulness. Hyperion, 2006. ISBN 0-7868-8654-4.
  • The mindful way through depression: freeing yourself from chronic unhappiness, by J. Mark G. Williams, John D. Teasdale, Zindel V. Segal, Jon Kabat-Zinn. Guilford Press, 2007. ISBN 1593851286.
  • Arriving at Your Own Door. Piatkus Books, 2008. ISBN 0-7499-2861-1.
  • Letting Everything Become Your Teacher: 100 Lessons in Mindfulness. Dell Publishing Company, 2009. ISBN 0-385-34323-X.

Bibliography from Wikipedia

Vacca - image - headshot - skt - apr 18 2013.jpgAndrea Vacca
570 Lexington Avenue
Suite 1600
New York, NY 10022

February 20, 2013

Preparing to Negotiate a Postnuptial Agreement

In previous blog posts we discussed the reasons why postnuptial agreements are becoming more popular and how to ensure that your postnuptial agreement is enforceable under New York law. If you've decided that a postnuptial agreement is something that you want to pursue, it is important to be adequately prepared for the negotiation process. These are some suggested steps that you should take before you begin:

• Write Down Your Own Goals And Concerns - It is easy to become overwhelmed by all of the questions you will have and to get distracted by all the issues that you may want to resolve. Likewise, it is easy to lose sight of the big picture and, due to the nature of the agreement, become overwhelmed by emotion. Taking time before negotiations begin to write down your long-term goals and concerns will help you maintain your focus on ensuring the best possible outcome for you and your spouse. It will also aid the negotiation process. By articulating a defined goal rather than becoming attached to a specific formula or percentage, both spouses are more likely to use creativity in finding a solution.

• Become Familiar With Your Assets And Liabilities - You cannot enter an agreement concerning your financial future without understanding your current financial circumstances. Familiarize yourself not just with your current property, debts, salary, and investments, but also what you and your spouse's potential earning capacity may be, any anticipated increase in asset values or liabilities, and any expected inheritance or trust payouts. You may find it helpful to consult with a financial advisor who has experience working with clients who are negotiating postnuptial agreements.

• Get Educated About The Law - Speak with an attorney who can educate you about the relevant laws related to spousal and child support, how assets are defined, valued and distributed, and what laws govern custody and parenting issues. Understanding your legal rights and obligations will give you a better idea of what a postnuptial can or cannot do for you and which issues may be easier to resolve than others.

• Get Educated About the Negotiating Processes Available - An attorney will also be able to help you decide what negotiating process will best serve you and your spouse. Do you and your spouse each feel comfortable advocating for your own needs and concerns? If so, mediation might be a good option. If one or both of you feels more comfortable having your attorney by your side during the negotiations, working in a collaborative manner might make the most sense. Or perhaps it would be too uncomfortable being in the same room as your spouse while you are negotiating such an agreement because emotions are running high. In that case, the best option for you may be to leave the communication to the lawyers. Speaking with an attorney who has negotiated postnuptial agreements via these different processes will help you determine what makes the most sense for you and your spouse.

• Hire Independent Legal Counsel - Even if you are proceeding by mediation, it is imperative that each spouse have his or her own attorney to consult with and review the agreement. An attorney can help clarify (and ensure compliance with) the laws of the state governing the postnuptial agreement, advise on the best way to divide the assets and liabilities at issue, and provide advice about how to negotiate for the outcome you desire. It becomes even more important to have your own lawyer if your spouse has one. This will help ensure equal bargaining power between the two of you. An even playing field is necessary not only to help both spouses feel confident during the negotiation process, but also in the event that the agreement winds up in court with one spouse claiming it was not entered into fairly.

These steps should assist you in coming to a fair and equitable agreement. Approached correctly, postnuptial agreements can be useful tools in preserving and strengthening a marriage and giving each party the peace of mind they need to feel secure about their futures.

August 13, 2012

The Importance of an Attorney in Mediation

It is no secret that litigated divorces are extremely draining, both on finances and emotions, which is why many couples turn to mediation as an alternative. Mediation increases the opportunity for divorcing or separating couples to reach an amicable agreement by working together rather than engaging in a nasty and protracted courtroom battle. Mediation is a voluntary process and the mediator acts as a facilitator to help the couple come to an agreement on all issues that need to be resolved. A mediator does not offer legal advice or make decisions for the couple. Therefore, it is imperative that each spouse understand the benefits of consulting with their own attorney both before and during the mediation process to gain a complete understanding of their legal rights and obligations and to discuss the various settlement options on the table.

1. Why do I need an attorney while I'm in mediation? Isn't it enough to just have the final agreement reviewed?

If you do not consult with an attorney before or at least during the mediation process, you cannot be certain that you understand all of your rights and obligations. You might think that something that you and your spouse have agreed upon is fair and reasonable without fully understanding the repercussions. If you consult with an attorney during the process, you will feel more empowered to deal with important issues that arise during mediation sessions. In addition, you will be better able to make decisions that will work for you in the long run. You don't want to be the client who agrees to waive your share of your spouse's pension, or who promises to pay what turns out to be an excessive amount of spousal support only to learn much later from the lawyer reviewing your agreement that doing so would be a grave financial mistake. You don't want to have to tell your estranged spouse that you have changed your mind when he or she thought you had a deal. This could destroy any trust and goodwill that was left between you.

2. Do all divorce lawyers understand mediation?

Since mediation is not the traditional way of approaching divorce, many attorneys have little experience with this non-adversarial approach. Some even disapprove of mediation, arguing that divorcing spouses should not negotiate on their own but only through their attorneys. These attitudes are slowly changing, as a heightened awareness of the benefits of mediation for divorcing couples is coming to the forefront. If you wish to mediate your divorce you should seek out consulting lawyers who are "mediation friendly" which means that the lawyer will advise you of your rights and provide you with counsel, while respecting your right to give more or take less than a judge may provide. A mediation friendly lawyer will understand that reaching an agreement that feels fair and equitable to you may be more important than getting every dollar to which you are entitled.

3.What questions should I ask to determine whether an attorney is "mediation

- are you trained as a mediator?

- have you acted as a consulting attorney for clients who have participated in
successful mediations?

- are you comfortable advising me of my rights and allowing me to give more or
take less than I might get in court?

To locate a mediator and/or an attorney who can serve as a consulting attorney contact the Family and Divorce Mediation Counsel of Greater New York.

June 7, 2012

Navigating the Gray Divorce With Dignity

My article on Navigating the Gray Divorce With Dignity was recently published by the Huffington Post.

December 5, 2011

NY Appellate Judge Suggests Divorce Clients Should Be Encouraged To Mediate

I was thrilled to read Hon. David B. Saxe's recent article in the New York Law Journal entitled "Encourage Divorce Clients to Mediate."

Justice Saxe, who is an associate justice at the Appellate Division, First Department, focused on the fact that clients who choose mediation over litigation have more control over their divorce process and the terms of their agreement and this correlates to being more satisfied with the results of their divorce. As he states in his article: "If matrimonial lawyers focus on the larger picture, they might recognize they stand to gain more in the long run from the good will and recommendations of satisfied clients following successful mediation, than from the backlash of dissatisfaction in the wake of a typical unpleasant divorce." Exactly.

Many studies have shown that clients who mediate are much less likely to be dissatisfied with their attorneys. This is because mediation, as well as collaborative law, focuses on the client's needs as opposed to their positions. The client who can look back and see that his or her lawyer was truly committed to finding solutions is going to be much more satisfied than the one who spent long hours waiting in court, was forced to endure adversarial and contentious arguments and suffered through the months or even years of litigation while having little control over the process.

There are certainly clients who "want their day in court." They are driven to prove the other spouse is wrong and they want to be heard. However, as Justice Saxe points out, due to increased case loads, even these clients won't be satisfied in court because trial judges are increasingly focused on encouraging compromise rather than trials.

When clients come to my office, I inform them of all the options that are available to them to resolve their marital and family issues, which include mediation, collaborative law and litigation. I encourage other attorneys to do the same. An attorney who can and will speak knowledgeably about these different dispute resolution models will be able to guide their client to the process that works best for them and their family. Using the court system to resolve family disputes should not be the first, knee-jerk response when a divorcing client enters your office. It should be the last.

October 3, 2011

8 Questions to Ask When Considering Divorce Mediation

Many couples contemplating divorce would like to try and reach an amicable agreement rather than engage in a nasty and protracted battle in a courtroom and they wonder if mediation might be a good choice for them. This blog has previously discussed mediation and collaborative divorce as alternatives to litigation. If you are interested in divorce mediation, here are 8 helpful questions to ask:

1. What is the mediation process like?
Both spouses sit down with a trained family mediator who will help them reach agreements on all of the issues that need to be resolved. They speak with each other directly throughout the process and exchange all necessary documents. Both spouses will have specific interests that need to be met. The goal of the mediator is to help each of them find solutions that meet those interests. Both sides need to be prepared to work together in a civil manner.

2. When does the mediation start and how long does it last?
The mediation starts as soon as both spouses are ready to start, and it can last until all issues are resolved. Parties don't need to wait for a court-assigned date the way they would if their case were being litigated and they can meet with the mediator as often or as infrequently as their schedules allow. While some New York courts have implemented mandatory mediation programs, most mediation is strictly voluntary.

3. Will I need my own attorney?
It is strongly suggested that each spouse consult with individual attorneys before and during the mediation process so that they fully understand their rights and obligations and can discuss with the attorney the different settlement options that are being proposed. It is also important that each spouse's attorney review the settlement agreement before it is signed.

4. What issues can be resolved during mediation?
Mediation can be used to resolve any issue involved in a divorce, including child support, spousal support, child custody and the division of property. A divorce mediator can help the parties to find creative solutions that could be impossible to achieve in court.

5. What type of training does the mediator have?
While there are no state requirements for New York mediators, family mediators who are also divorce attorneys, usually have several years of family law experience. Mediators are not required to have a legal education, but a mediator who is also an attorney has the advantage of being very familiar with the law and understanding the rights of both parties. He or she is also able to draft a legally binding settlement agreement that contains all of the terms that the parties have agreed to.

6. What if my spouse knows much more about the finances than I do?
The key to a successful mediation is that both spouses are on equal ground. If you feel insecure about financial issues, you may want to consult with a Certified Divorce Financial Analyst who can educate you on your current financial situation and help you understand what you need for your future. CDFA's will use their knowledge of tax law, asset distribution, and short- and long-term financial planning to help you achieve an equitable settlement.

7. What are my other options if we can't reach an agreement through mediation?
While you always have the option of asking a court to resolve these issues for you, you may want to consider the collaborative divorce process before going the litigation route. In a collaborative divorce, you will always have an attorney with you during the negotiations who can advocate for your rights and interests and articulate your goals.

8. Could anything said during the mediation be used against me in court?
If you sign a confidentiality agreement with your spouse and mediator, the answer is probably no. That agreement needs to specify that all statements are considered privileged communications and cannot be used in court.

Continue reading "8 Questions to Ask When Considering Divorce Mediation" »

August 12, 2010

Why I Practice Collaborative Law

On August 11, 2010, I was a presenter at a CLE entitled "Why Would An Attorney Want to Practice Collaborative Law?", which was presented by the New York Association of Collaborative Professionals and sponsored by Moses & Singer, LLP. The matrimonial litigators in attendance asked many good questions about the process itself and about the kinds of cases that are handled collaboratively. After the program ended, I continued to think about all the reasons that I personally choose to practice collaborative law and keep my clients and their families out of court whenever possible. There are many articles and blog posts touting the benefits to clients, but not necessarily the benefits that the attorneys receive. So I thought I'd share a few of mine:

1. I'm Helping My Clients Move Forward With Their Lives - Divorce is never easy. The emotions that come up and financial decisions that need to be resolved are difficult. But by removing the time, stress and expense of preparing a case for trial, I can better help my clients create a better future rather than rehash the past.

2. I'm Involved In Good Faith Negotiations Rather Than Game Playing - Collaborative negotiations are taking place in good faith and I can trust that my collaborative colleague and I have the same goal - to find a solution that works for everyone. Win/Lose is not acceptable. Any agreement we reach must be a Win/Win.

3. I Can Be More Creative - By staying out of court, my collaborative colleague and I are better able to help our clients creatively structure an agreement that meets both parties' particular interests and goals.

4. I Have Better Relationships With My Clients - My collaborative clients know that I'm working to help them meet their and their spouse's interests and goals and they see that their spouse's attorney is doing the same thing. This team approach is more satisfying than an "us versus them" approach. And this satisfaction translates to more positive attorney/client relationship.