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Thursday, March 21 , 2019, 3:48 am | A Few Clouds 47º


Brian Burke: About Your Divorce (Letter 143) — Should You Throw a Dead Fish on the Table?

Oblique Strategy #37 — Should you throw a dead fish on the negotiating table?

The subject of this column came up on a Google search while I was researching what we might be able to learn about divorce from Brexit.

One of the Brexit principals is said to be the type of politician who would throw a fish on the negotiating table.

When I used the same search term two weeks later two things came up in the results:

1) An Italian saying: “Put the fish on the table!” — a warning against hoarding perishables and an admonition that fish should be served as fresh as possible

(2) Articles about the fishing rights of the various EU countries

Even without its currency of two weeks ago, it’s still a good topic. To throw a fish on the bargaining table means doing something unexpected to change the course or structure of the negotiation. Here are five examples of how one might throw a fish on the table:

» The walk out Unless under the direct supervision of a court, it is always possible to stall a mediation session by simply walking out. It might be the end of all negotiations if something isn’t said to suggest the possibility of a rescheduled meeting.

In one admirable move, Husband terminated that day’s session by saying: “My heart is in atrial fibrillation, so I have to stop for the day.” This was before half the aging population was experiencing AFib.

Wife, my client, explained to me that “he always gets it when he’s behind or bored.”

» The worst thing that can happen during a negotiation is for one party to renege on an agreement or partial agreement that was reached in a previous session, even if the agreement was explicitly provisional.

There are two phases in settlement negotiations. The first is competitive and the next is cooperative. During the competitive phase there is always the risk of failure no matter how advantageous an agreement might be to both parties.

Work always starts on procedural concerns and proceeds to relatively small issues, so the negotiators get a sense of accomplishment and confidence in their ability to deal with each other.

When a provisional agreement is repudiated, the demoralizing effect is profound because the experiential evidence suggests that the parties are unable to work with each other.

When one party reneges in a commercial transaction, it might well be the end of the attempted deal and the end of future contact. When it happens in a divorce it almost surely means that the attempt to negotiate was premature.

During grief, the “false bargaining” stage is a time during which the parties may feel like they are going around in circles.

Maybe they are, but below the surface they are learning both to talk to each other in a non-intimate way and to do business with each other in a non-intimate way, and they are becoming increasingly realistic about the terms of the ultimate deal.

» Almost as bad as reneging on a provisional deal is withdrawing a proposal that has been on the table. Wife may say, “I am seriously thinking about parting with the rental house for $1 million.”

Husband doesn’t respond, but he thinks about a settlement based on his acquisition of this property for $1 million, and he works out a proposal around that concession.

The next session begins with Husband saying, “I’ve worked up a proposal based on your suggestion that you might part with the rental for $1 million.”

Wife says, “I’ve been thinking about that, too. It’s not enough money. I shouldn’t have said anything about the rental.”

No, you shouldn’t have, because you have brought us to a stall. An identified extrovert will often think out loud while negotiating. In fact, she may have an absolute need to think out loud in order to think at all.

An identified introvert must think alone before making a commitment. When he hears, “I’m thinking about a $1 million sale of the rental,” he is likely to interpret the words as a proposal because that’s what he would have meant if he had said them.

Mediators are especially effective in dealing with this potential problem. It’s easy to differentiate between extroverted and introverted styles.

An extroverted party must be given space to “think out loud.” An opposing introvert can be given a “lesson in life” and learn not to be self-referential when interpreting the other’s intent.

The mediator is also responsible for ensuring that the introvert gets the time and space needed to make confident and lasting decisions.

» A spontaneous expression of gratitude can stop almost anyone at any time. If one party expresses gratitude for something or someone during the course of the mediation, the conversation will change in a direction favorable to the person who has been publicly grateful. It never fails.

A slight variation of this move in the context of divorce is what might be called “the final twist.” It is to be reserved for use when the parties are discussing the final issue.

He’s talking and explaining why he can’t fully accommodate her final demand/request. While he’s in mid-sentence, she interrupts, saying: “Ralph, I still have feelings for you.” Ralph will fold right then and there.

Note that she is being truthful, even if her feelings for Ralph are not positive. She may loathe him, but she won’t get what she wants by saying so.

When Ralph hears her speak, he assumes the feelings are positive because Ralph is a man. To him, the remark means that her feelings may keep the divorce going indefinitely or he, in his totality, is wickedly attractive, even to his soon-to-be former spouse.

He concedes the point to avoid the risk of an endless divorce and also to make time for him to consider the implications of his attractiveness.

» The Balloon Lady once sent a man dressed as a gorilla into court to hand Husband ten black balloons when he testified about the “irremediable breakdown of the marriage relationship.”

Once he had the attention of the audience the gorilla sang “Happy Trails to You” as he made a hasty retreat out of the courthouse. We now do the final termination of the marriage electronically, but something important is missed.

During negotiations “The Throw” has been immortalized in a training video by Cholmondeley Productions. It’s a five-year marriage and he wants out two months after the birth of a baby.

He wants to “get on with his life.” She, with her new baby, is not in the mood for divorce. Even when she’s feeling her strongest, she is not going to make it easy for him.

A mediation session is set up so he can present her with the accountant who has studied their cash flow and support needs plus a business appraiser who has established an exact dollar value for the business.

Wife sits through the meeting and isn’t a bit interested in the work Husband has put together to make it easy for them to divorce. Husband is rather pleased with the way his presentation has gone. Then she asks:

“Can I say something?”

The mediator says, “Of course.”

Wife picks up her glass of water and screams, “You son of a bitch!” as she throws it at her husband.

I wrote the script for the outbreak, the lead-up, the aftermath with Wife and the aftermath with Husband based on a real experience in which the parties were older but the circumstances described were identical.

The training video interviewed a panel of mediators and asked each what he or she would do after the water was thrown.

One orientation was toward Wife to understand her behavior as a desperate (and brave) attempt to stop a process that relentlessly ignored the fact that she had been dumped with a brand new baby. Maybe she didn’t want her husband back, but she did what she could to prevent the railroading of her marriage.

The other orientation was toward the existence and meaning of rules and the necessity of following them.

Oblique Strategy #38 — Where do you get a foot massage in Chicago?

— Brian H. Burke is a certified family law specialist practicing family law and mediation in Santa Barbara. A researcher and educator in the field of divorce and family conflicts, he is also the creator of the Legal Road Map™. Click here for more information, call 805.965.2888 or e-mail [email protected]. Click here to read previous columns. The opinions expressed are his own.

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