Month: October 2013

Taking the First Step in Negotiations

Posted by Sharon O'Day on October 30, 2013 with 1 Comment

Have a bias toward action – let’s see something happen now. You can break that big plan into small steps and take the first step right away.

Indira Gandhi

For better or worse, we each have to negotiate all the time. Let’s say you have a problem that needs to be resolved. You may have a disagreement with your sibling about how to care for Dad, or a conflict with your business partner about the direction the business should take. You know there is a conflict and you want to resolve it before it gets worse. Or, perhaps it is not a problem but rather an opportunity. You have applied for a job and must meet with your prospective employer to determine what the terms of your employment will include. Or, perhaps you want to buy a car or a house. You know you have to bargain but the idea fills you with fear. In all of these situations your best option is to negotiate a strong deal. Very few of us have ever had a real class in negotiations so the mere thought of bargaining makes us a nervous. And yet we are faced with the opportunity (or saddled with the burden) of negotiating on a regular basis. This series of articles looks at the steps to take to effectively negotiate in any situation.

We have identified the six steps to effective negotiation: (1) identify the interests and positions, (2) Consider both side’s options to resolve the issues, (3) Research everything, (4) Establish the ground rules, (5) Bargain: Look for overlap and ways to resolve the issues that best meet the most concerns of the parties, and (6) Memorialize the agreement. Each of these steps requires a certain amount of work and skill. But with the right amount of effort you can be prepared to effectively negotiate in any situation.

The first step is to understand the difference between positions and interests and then to identify each in your situation. The easiest way to consider interests and positions is that the positions are the “what you want” of the problem and the interests are the “why you want it”. Positions are usually easy to identify. I have represented many people in divorces and it is not unusual in the first meeting to hear “I want the kids to live with me most of the time, I want my ex to pay me child support, I want alimony of at least $5,000 per month and I should get half of all the stuff. You can do that, right?” In a job negotiation the prospective employee may be thinking “I want $55,000 per year, good health insurance and a 401(k)”. The seller of a house may be thinking “I must get at least $300,000 for this house. That’s my bottom line.” All of these are the “positions” of the people entering the negotiations. The “what” I want. Positions are usually stated in “black and white”. They are often stated as “bottom line” places. And because they are stated as positions they do not allow flexibility. Either I get what I want or I don’t do the deal.

Contrast this with interests. Interests require you to look at “why” you want “what” you want. In the case of my divorce clients, I would often dig deeper to learn my client’s real interests. These may be a fast and amicable divorce with minimal disruption for the children and security for the family at the end. The “why” question will get to the bottom of the positions to find the interests. If I ask a parent in a mediation “why should the children live with you most of the time” I may find that it is because the parent perceives that they were the hands on parent that always helped with the homework and attended all of the school functions. I might also learn that this was one of the sources of anxiety in the family and that the parent would love it if their spouse would become more involved in the children’s lives. We may now have a new way to resolve the issue of parenting time if the other parent agrees to become more involved in the daily parenting activities. Similarly, with the negotiations for a new job, when you consider the “why” question for the position stated above, it may become clear that the reason that the person set the salary where they did was because they had parenting responsibilities that required them to pay a care giver for the afternoons, but a flexible work schedule may allow them to take a slightly lower salary while still meeting the needs of their family.

Knowing your “whys” is often the most difficult but critical part of the negotiation process. It is difficult because we become emotionally invested in our “whats”, that is our positions. It is easier to think in black and white. But to quote the title of a strangely popular book there may be “50 shades of gray”. It is by answering our “why” questions that we become open to the flow of negotiation and see opportunities that exist outside of our positions but that will meet our needs. The answer to the why questions, the identification of our true interests, allows us to explore possibilities that meet our needs in ways that we may not have considered. It also gives a justification to our positions that are truly immovable.

It is not only important to know our own interests but also to become familiar with the other sides interests. For the seller of a house the bottom line they want for the house is $300,000 (their position) and the buyer may not want to spend a dime over $270,000 (their position). This would normally mean the end results was “no deal”. But a savvy real estate agent may be able to structure a deal that could work for these two people if the agent is aware of the “whys” for each side. If we know that the seller has the ability to take back the mortgage on the property and this will provide them with a stream of income that they wouldn’t otherwise have and the seller is willing to pay a bit more on the price for favorable terms on a mortgage that they wouldn’t otherwise qualify for than there may be middle ground. Or perhaps the buyer is willing to pay more if the house has a new roof and the buyer has connections that will allow them to make some repairs and replace the roof at a reasonable cost. These solutions may meet the buyer and sellers interests more than the intractable positions they originally took.

The “whys” in negotiations are often our primal emotions: security, safety, trust, happiness. When someone says that they have a bottom line dollar number and will not take/offer a dime more/less, this is rarely the case. When I still litigated divorces, I often entered negotiations where my client had said something like “I will not accept a dime less than $3,000 per month in alimony”. But after hours of negotiations when the “final” offer comes from the other side that they will settle for $2,200 per month in alimony but will agree to more than half of the assets coming to my client, and pay for the child’s private school so long as they receive the tax deduction for the child, suddenly a deal is done. That is because both sides had their interests (the whys) met by the deal. Once we moved from a specific number to look at the bigger picture of tax consequences, special opportunities for the children, and overall family security we were able to meet the needs of everyone.

So, if you are facing a negotiation take a moment to plan. Identify what the issues are that must be addressed. Set an agenda for the negotiations. Then think a bit about what you want and why you want it. Next think about what the other side most likely wants and why they want it. You have now identified the issues, the positions and the interests. The first step is done and you are ready to start to explore the possible resolutions as part of step two.

The Six Steps to Negotiations

Posted by Sharon O'Day on October 28, 2013 with 0 Comment

“Life is a series of steps. Things are done gradually. Once in a while there is a giant step, but most of the time we are taking small, seemingly insignificant steps on the stairway of life” Ralph Ransom, Artist & Author

Every negotiation follows certain simple steps. We are often not even aware that we are following the steps. Sometimes we may skip a step but I would say this is at our own peril as the side that avoids or ignores a step is at a complete disadvantage. When we were young and in a hurry we may try to climb steps two at a time or jump down steps in even longer leaps. But an adult would always admonish us that it was not safe to miss steps and that we should be careful in using the steps as laid out for us.

In this series of articles I am going to break down each of the critical steps to a negotiation. These steps apply equally to a negotiation that is facilitated by a mediator and to any negotiation that you find yourself in on a daily basis. As a trained mediator I see many parties come to the mediation unprepared and without having gone through these steps. This is a sure sign that the mediation is going to be more difficult and may very well result in an impasse. This is so unfortunate because a little preparation could have saved the time and expense of the mediation and resulted in a signed agreement.

The steps in their simplest form are as follows:

Identify the issues and the positions.
Consider both side’s options to resolve the issues
Research everything
Establish the ground rules
Bargain: Look for overlap and ways to resolve the issues that best meet the most concerns of the parties
Memorialize the agreement

I will discuss each of these steps in some detail in future posts. For a simple “negotiation” like deciding on a dinner menu for the family or determining what time is curfew for your teenager, each step may be simple and require less than a minute. But for complicated issues like a divorce, the dissolution of a family business or resolving an international crisis each step may need painstaking attention and take days or weeks before the parties are ready to move on to the next step. No matter what type of negotiation you find yourself in, a thorough understand of these steps and a willingness to commit the time necessary for each will result in a better likelihood of reaching an agreement and walking away with a deal that each side can live with.

2013 Florida Case Law Update

Posted by Sharon O'Day on October 17, 2013 with 0 Comment

Law is Order and Good Law is Good Order. Aristotle

I am honored to be presenting the 2013 Florida Case Law Update at the Family Court Professional Collaborative meeting this year. There are over 130 appellate cases that have an impact on Family Law in the state of Florida decided by our Courts this year.

While I am a firm believer that the law should not be the sole determinant, or in some cases even the prime consideration, in deciding how a dissolution of marriage should be resolved, knowledge of the law is often a helpful starting point. To know what is possible, sometimes it is important to know what is not possible, at least as determined by the law.

I have attached a link to this years Case Law Update here.

Find Your Calling!

Posted by Sharon O'Day on October 12, 2013 with 0 Comment

“The two most important days in your life are the day you are born and the day you find out why.” Mark Twain

You know you have found a calling when…

Today I got up before the crack of dawn to walk the dog and feed the dog and cat. This is normal most days but on Saturdays I can usually sleep in a bit. At least until 7:30 when I have to get up and walk the dog before yoga. But today, I was up at my normal weekday time of 6:00 to walk the dog and get busy. This Saturday was a bit different because I had to be downtown for the annual Walk to End Alzheimer’s Disease. It was what I used to think of as “marketing”. I was sponsoring a table and talking to people about what I do. But today was not about “marketing”. It was about meeting new people, working together for a good cause and spreading the word of an opportunity that few people know about — my work as a mediator.

Last week I walked in the Bradenton walk. This week I was honored to be a sponsor for the Sarasota walk. I was also able to join hundreds of people out raising money and awareness as we walked and talked and laughed together. This evening I wanted to share the joy I felt to be out today and the joy I feel in my life. I have found my calling and it makes me happy.

So, what are some of the signs that you have found your calling? These are mine:

“Pleasure in the job puts perfection in the work.” Aristotle

Things that are usually thought of as hard work come easily. Getting up early, working late, working seven days a week and wishing there was one more day for you to work. Time flies when you are having fun. It also flies, perhaps faster, when you are driven, dedicated and committed to your path.

“Don’t give up trying to do what you really want to do. Where there is love and inspiration I don’t think you can go wrong.” Ella Fitzgerald

Good things happen and you don’t even know how. Since closing my litigation practice and committing to peacemaking through mediation, I have been so blessed to have good things happen. I have been invited to speak at several conferences. I have two more speaking engagements coming before the end of the year. I have been inspired to write and spread my knowledge. I have been honored to be a chosen as the mediator and facilitator by many new clients. Good things happen when you are on the right path.

“The only way to do great work is to love what you do.” Steve Jobs

When you stray from the path it is easy to find your way back. Just because you have found a calling doesn’t mean that the path is always clear. It is just as easy to stray from the path. There are obstacles and bumps in the road. But, you sense the shift in the terrain much easier and find your way back to the path, the place that feels right, so much easier when you are on the “right path”.

Things come to you as you need them. Mentors, money, opportunity… All of these have come to me more easily and in great abundance since I changed my path. Also, smiles, sleep and health. It is not magic, although sometimes it feels that way. It is the energy that we produce when we do what we love and the confidence that we exude when we know we have chosen well. This is not to say that I don’t worry. After all, who starts a new business and doesn’t loose a few nights sleep. But now when I can’t sleep it is because I have things to do and I want to do them.

“Your work is to discover your work and then with all your heart to give yourself to it.” Buddha

Work isn’t work. When I was a litigator I hated “marketing”, spreading the word of what I did and seeking out clients. Now, I love every opportunity to tell people what I do. I look for any chance to help people find solutions to the troubles they have in their lives and in their families. Even the mundane tasks that face every business woman are easier when it is part of a bigger picture.

My career has been very circuitous. I heard recently that a child coming of age now will have fourteen careers in their adult life. Not jobs but careers. I have had at least six. I have been an administrator, a researcher, an advocate, a diplomat, a lawyer and a mediator. Each has been appropriate for a time in my life. Each has somehow built upon the last. Each has filled a need. But the place I find myself now feels like a pinnacle. This path feels right. I finally know what I want to be when I grow up. The trip has been fun, but I am glad that I have arrived.