You must tell your spouse why you are entitled to the goals you are seeking. Simply stating that you want half the property, without providing justification for your wishes, will invite nothing more than a contest of wills. Nobody wins when negotiations become a contest of "who's right".

Illustration: Fred announced to his wife's lawyer that he would not consider anything other than a 50/50 split of the property. He explained that this was a short-term marriage, and the case law backed him up. The wife's lawyer candidly agreed, but countered that the case could be settled if the wife could be assured some short-term rehabilitative maintenance. He explained that Fred earned twice as much money as Mary, and that Mary needed money to make a substantial deposit on a new apartment and Fred could afford it. Moreover, case law permitted maintenance even in short term marriages. The case settled in 20 minutes, largely because each side understood the other's position.

Similarly, if you change your position, you need to provide your spouse with the rationalization behind the new position you have chosen. For example, assume that while negotiating for the family residence you learn that a judge will probably award your spouse a percentage of the house. You decide to take matters into your own hands by sending a signal that you will accept a lien from you to your spouse for ten percent of the sale proceeds, explaining to your spouse that you believe a judge probably would say that he or she is entitled to ten percent. This lets your spouse know why the change is being made but keeps your spouse reminded that you still want the house.

Arguments must be presented objectively. Your client should never issue threats during negotiations unless the client is prepared to carry them out, since failing to do so will undermine credibility. Encourage the client not to be negative. Instead of threatening dire consequences, the client should make positive promises that suggest a flexibility which, hopefully, will be reciprocated.

I sometimes offer clients the example of Jeanine, who wanted the family house to live in until her daughter, Brooke, graduated from high school. Instead of accusing her husband, Mark, of trying to throw her and the kids out, she calmly suggested that she would agree to share a percentage of the house sale proceeds, provided the sale occurred after Brooke's graduation. Jeanine and Mark were able to settle what appeared to be a deadlocked case simply by looking for alternative solutions which met common interests. They competed for a limited resource, the house, but they also communicated their respective needs to find a congruent solution.

It is important to encourage the client to keep options open. Often there is underlying emotional hostility which permeates the negotiating style. Some negotiators approach the bargaining table with a "take it or leave it" mentality, refusing to agree to any changes at all, whether they be crossing a 't' or dotting an 'i'. The only acceptable reaction to their offer, in their minds, is acceptance followed by a signature on the contract. This "take it or leave it" attitude is really a sign of their strong need for certainty. Ironically, such an attitude often means achieving certainty only by sacrificing a fair transaction.

Actual negotiations between real-life couples are not played on game boards and there may not be an obvious "winner" or "loser". In real life, there is no definite set of rules which limits the players to certain kinds of moves. Negotiators who look at bargaining as a game end up regarding the outcome in a purely competitive mode, which can be self-defeating.

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