Multiparty Negotiations In Divorces? More Common Than You Think.

When people hear the term multiparty negotiations, they think UN summit, class action law suit, or patent/trademark disputes.  No one ever thinks divorce because in a divorce you have two parties, right? Well, not always.  During a recent seminar, a mediator was speaking about how she often gets called in on certain cases where there are aunties and uncles involved because she is able to understand the cultural differences and the roles those third parties play in the negotiation of a marital settlement agreement.  Oftentimes if the divorcing parties are young, mom and dad are involved in the mediation because they are holding the purse strings.  Conversely, where the parties are elderly, the adult children may be involved.

 Any one, or all of these situations lead to a multiparty negotiation; the mediator may or may not know it, but it’s a phenomenon that exists and cannot be ignored.  There are several issues that can arise in multiparty negotiations that must be considered: (1) the formation of coalitions, or two or more parties joining together against another party; (2) the process of the mediation itself and ensuring the concerns of the minority groups (the children, aunties, parents) are heard; and (3) the constant adjustment of each party’s BATNA (“Best Alternative to a Negotiated Settlement”) based on the coalitions that are formed and the constant changing settlement agreements.  

 Coalitions are formed between parties where there are common goals or interests.  This is sometimes seen where family members exert pressure on one side or in a grandparent visitation case where one biological parent is deceased and the other biological parent and his/her parents have formed a coalition against the deceased’s parents. Coalitions should be chosen wisely and it is important to consider the defenses to these coalitions before going into mediation.  Keep in mind that the grandparents who formed a coalition with the adversarial spouse/parent today may be estranged from that parent at some time in the future, and so the relationship, and therefore, needs may change.

 The process of managing the interests of all the different parties is something that has to be addressed long before the mediation begins.  The most frustrating thing to occur is for everyone to leave a mediation with what they believe to be a successfully negotiated settlement, go home and share it with the other minor interested parties, only to be told “well, that’s not happening.”  The wiser thing therefore is to begin the mediation preparation by identifying the parties and their interests.  Counsel for the parties can do this with a conference, or if the minor interested parties wish, they can attend the mediation, or that portion of it that affects them; for example, step-parents may be relevant to college contribution, grandparents for visitation and custody.  

 Finally, with more parties comes more settlement offers and therefore more BATNAs.  With a two-party negotiation, each party went into the negotiation with the solid knowledge of what they would do if they did not reach a deal.  A well-prepared negotiator will also be able to (within a reasonable degree of certainty) calculate what the other party’s BATNA is as well.  However, with more than two parties, trying to guess what each person’s BATNA is, or what your BATNA is, based on what happens between A and B is difficult if not impossible.  For example, Wife may go into mediation with the knowledge that Husband has no liquid assets and his largest asset is his pension and 401k; therefore, she has planned on keeping the home, offset by Husband keeping those retirement assets. Unbeknownst to her, Husband’s parents have agreed to lend Husband the money for the buyout as it is important for them to have their grandchildren close to them geographically.  So now Wife’s BATNA has changed as the grandparents are now a party to the negotiations. 

 The most important goal in any negotiation or mediation is to reach an agreement. In order to do this successfully, you must rely on everyone to commit to identify what their interests or concerns are and to engage in problem solving.  Grandma’s concerns have to be heard, even if a party believes them to be minor.  There’s a great book called Breaking Robert’s Rules by Lawrence E. Susskind and Jeffrey L. Cruikshank that talks about how majority rules does not work because you end up with a very unhappy minority (that is not guaranteed to remain quiet).  The best way to handle a multiparty negotiation is to ensure everyone has a seat at the table (directly or indirectly) and that their concerns are addressed.