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Divorce Dialogues helps people navigate divorce with dignity, clarity, and perspective. Through thoughtful conversations with experts and practitioners, the show explores the emotional, financial, legal, and relational realities of divorce, so listeners can make better decisions, communicate more effectively, and move forward with greater confidence.
Because divorce is more than a legal transaction, it’s a deeply human transition.
Katherine Miller (00:00):
What if the thing that you are fighting hardest for isn't actually what you need? One of the biggest breakthroughs that I see in mediation and divorce negotiations in general happens when people stop defending their position and start understanding what really, really matters to them. That's where better decisions begin and real, real progress happens. Welcome to the Emotionally Savvy Divorce Series, a special series from Divorce Dialogues. I'm Katherine Miller, and together we'll explore the mindset shifts that help people navigate divorce with greater clarity, confidence, and dignity. Whether you're at the beginning of the process or finding your footing afterward, each episode builds on the last to help you make better decisions and create a stronger path forward through divorce.
(00:58):
Welcome back to the Emotionally Savvy Divorce Series. I'm Katherine Miller, host of Divorce Dialogues and author of the book, The Emotionally Savvy Divorce. We've talked about redefining what success in divorce really looks like and why the pursuit of fairness can sometimes keep us stuck. If you're just joining me, I encourage you to go back and listen from the beginning of the series. Each episode builds on the last, and together they create a framework for navigating divorce with greater clarity, confidence, and dignity. Today, we're taking the next step. One of the most important things that I've learned as a mediator and as a divorce lawyer over the years is this, that people usually come into divorce convinced they know what they want. But very often, what they're asking for isn't actually what they need and ultimately isn't what they want in the end. And understanding the difference can really change everything because when you stop focusing on your position and start understanding your interests, start really leaning into what matters most, you open the door to solutions you may never have considered before.
(02:05):
Let's get into it. Part one, the problem. We confuse positions with needs. When people come into any kind of divorce negotiation, they usually start with positions. They tell me exactly what they want, the house, the retirement account, more parenting time. Those are important conversations, but they're only the beginning. And here's why. A position is what you're asking for. And why do you think that this is important? Well, thinking about divorce, thinking about changing your life, that makes people anxious and it should make people anxious. There's a lot at stake and none of us like to be anxious. So what happens as we think in our minds, what would happen that could make me feel less anxious about this situation? What would make me feel like my kids were going to be okay going through this? What would make me feel like I wasn't being completely disrupted in my life as I go through this divorce process?
(03:01):
And we have an idea. Well, I could stay in the house with the kids. And we hold onto that and that becomes our position. And we ask for it and we hold onto it really tightly because letting go of it would mean maybe that we have to get back into that anxious state and nobody, nobody wants to be that. I hate being anxious myself and I feel that this very personally as well as having observed it professionally with so many of my clients. But the thing that's really important is what we in the field call an interest. Why you took that position? What was it that was really important to you? That's why the position matters. So what was I saying before? I was talking about, okay, you think, well, I don't want to be really any more disturbed in my life than I already feel emotionally.
(03:49):
I want my kids to be okay. These are the things that are interest. This is what really matters to you. And your solution all to stay in the house with the kids. Well, that is an option. That might work, but there might actually be a better solution if you're willing to lean a little bit into that anxiety and explore what it is that's really most important to you and why it is that you landed on the solution, stay in the house with the kids. And a lot of conflict in divorce negotiation, frankly in any negotiation, happens because we stop at that position. Now remember I just said, we hold onto that position really tightly because it saves us from having to feel so anxious about the thing that really worries us. So this extra conflict happens because we're stopped at that position and both of us really dug in.
(04:43):
But leaning into what's really, really going on underneath that, what is really most important, allows for a little bit more evolving, a little more evolution of the problem. As we understand it better, we see the situation, we get to explore a little bit more and that might allow us to get to something else because positions tell us what people want, but interests tell us why they want it and what they really need and understanding the why that gives us the opportunity to explore new possibilities. Part two, The Trap. We become attached to one solution. The mistake is definitely not having strong preferences. We all do. The mistake is believing that there's only one way to meet your needs because becoming really attached to one solution, only one solution, we stop seeing other possibilities, even those that might meet our needs better than what we initially thought.
(05:42):
Another thing that happens when you become really attached to a position is that it can feel that giving up on that position is losing. And I don't think that you should feel like you lost. And I'm not advocating for that in this episode at all. What I'm actually suggesting that people do is to explore what is important to them about any one position that they might be taking, any ask that they're looking for. So let's just use staying in the house with the kids as an example since I started with that earlier in the episode. When you think about it, what does staying in the house with the kids give you? And what's important about that? So for my hypothetical here, staying in the house with the kids allows for the children to feel stable going through the divorce process at least for a while.
(06:36):
And it allows a person who stays in the house with the kids, you in my example, to feel at least grounded. Life isn't changing that much. Maybe my spouse is moving out. Maybe I'm not with the kids all the time, but at least my surroundings are the same while I go through this difficult time. At least I don't feel that I'm being that disturbed in my life that I don't need to actually move because obviously adding moving to divorce adds another huge stressor to a difficult time in life anyway. So leaning into what it does for you allows you to really discern what those needs really are rather than focusing so much on the house. So stability for the children, stability for myself, making sure that I don't have too much to deal with at one time so that I can make intelligent, thoughtful, proactive decisions.
(07:27):
These are the things that are really important to me. In fact, staying in the house with the kids was really important to me when I was going through my divorce because of many of the reasons that I just talked about in my hypothetical person. However, there were other things that were important to me that I realized later on. Being able to afford the mortgage and the maintenance of the house, being able to do other fun things by myself and with the kids and having the money to do that, not being worried about money all the time or what the property might need in terms of maintenance. And so maintaining some stability for the children and for myself through the process when I really leaned into it, gained a little bit more momentum and a little bit more perspective on other ways in which I might be able to do that.
(08:19):
And so for myself and for you or for anyone who's going through a divorce, it's really important not to confuse, conflate this idea of losing by giving up a position from being flexible to find the best resolution that really works despite what your initial thought might be. Part three, the shift, discovering the interest beneath the position. One of the simplest and most powerful questions I ask in divorce negotiations is this. Tell me why that matters to you. That question often changes the entire conversation because once we start understanding the why, we really start to get a little bit more focus on the what. There's a famous story of two girls who are fighting over an orange. They both want it. And guess what? There's only one left. And so they go to their mom and they're making their arguments, as lawyers often do, about why they should get the orange.
(09:21):
I want it. You got it last time. The kinds of things that kids always say. And what would an impatient mom do? I can see myself doing this. I've got five kids and these kinds of arguments were always a pain in the ass. So okay, I'm going to wash the orange and then I'm going to cut it in half. You each get half. But if I take a few minutes to ask them each why they want the orange, I might learn, as the mother did in the story, that one wants to bake a cake and she needs the rind and the other wants the juice. And both of them, instead of getting half of what they want in the compromise, cutting the orange in half, both can have 100% of what they want because their mom took the time to ask them why they wanted it.
(10:06):
When you're thinking about what would be a helpful way to frame an interest once you've done some exploring, leaning into the process of what makes me anxious about this? What do I want to protect? What's most important for me? There's what I think of as a four-pronged test that can help you talk about the interest in a way that is useful for the negotiation. So number one is that this is really an important thing. This is not a BS thing that you just though of on your way there that you could write on the back of a dirty napkin. This is something that's really important to you. It has enough tangibility that it can be useful in the conversation. It's not like, well, I just want to be happy. It has to be happy in what way? It points towards multiple ways of solving the problem.
(10:53):
It has multiple options that will help resolve the need. And four is that it's presented as a benefit to me, to the speaker. So this is not something I don't want. If it's something I don't want, then you have to reframe it to something you do want. I don't want to feel like I have to move. Okay? Could be a reframe to, I want to have some stability as I go through this process. I might have in my mind that the only way to do that is to stay in the house, but there might be other ways of talking about that in terms of the ultimate resolution. And it also can't be framed as a punishment to the other person. I don't want them to get away with that. I don't want this for them. I want them to be punished in some way. That is not part of an interest.
(11:45):
That is something completely separate. So this four-pronged test helps you talk about what's most important to you in a way that's really helpful and that the other person can understand and move towards resolution. Another thing that I have found in my experience can be very helpful is when you get to what people sometimes think of as impasse, a really stuck spot. I want the house, we need to sell it. I want the house, we need to sell it. Having a broader conversation about the why opens up the conversation and shifts from black, white, yes, no, me, you, to a more nuanced understanding of the situation. And that really does shift that stalemate, that impasse to a place where what seemed impossible now all of a sudden has some possibility for resolution. And it's really interesting to see that happen because when people understand not only their own interests and can articulate their own interests, but they also understand what's going on for the other person, the other person's interests, then sometimes they stop negotiating against each other and start working together to try to solve their problem because they share the problem.
(12:57):
We need to resolve this. We need to get through this. And if we can work together to do that, we're probably going to get to a resolution that works better than what either one of us though when we came into this discussion. Part four, a real life example. So I can remember a number of years ago, I had a mediation where the parents were both really involved parents and they wanted to have a fifty fifty parenting plan. And we went back and forth and it was very painful because of course both parents wanted to be full-time parents who doesn't. And that dividing the children's time was a point of contention, both for their own sense of involvement in the kids' lives, and also because neither parent wanted to be a less than parent or less than the other parent or less than he or she had imagined themselves being.
(13:50):
But they had a really unique kind of situation. The dad's family had a vacation home and they went to that vacation home very frequently, particularly in the summers. And in the summers, the kids were really involved in the local club and swimming and sailing and all that kind of fun stuff that the family had done before. And he and the kids wanted to continue to do that during the season. Now, this house happened to be pretty far north, so they weren't swimming in the spring and the fall because it was pretty freaking cold. And it was kind of a long trip, but they did it for their summer vacations and they did it on many weekends. So he wanted to have more time with the children during July and August to go to the family home where there were also cousins. And mom wanted the kids to continue to be able to participate in those things, but she didn't want to give up that time.
(14:49):
And so we had this sort of argument about fifty fifty, what did that mean? What was fair and right and best for the kids back and forth. And ultimately through many conversations, and lawyers were involved with this too, we were able to dig into what was really important, what was really going on for mom and dad and for the kids and work out a parenting plan that had different seasons in it. And so each parent had, if you looked at 365 days a year, each parent had equal time, but the time looked different depending on the season because we were able to get a really deep look into what was going on for them and how they saw what was most important for the children. And so that original demand, fifty fifty, fifty fifty, which had that real importance, that real urgency on a number of different levels shifted to finding what would work best for the children, allowing them to have as much continuity in their activities and their relationships with family members outside their parents, but also really honor the close relationship the children had with both parents and move forward in a really positive way.
(16:06):
If you ask me what I've learned after all these years, it is this. Most people don't need or even want exactly what they initially asked for. They need what they hope that that ask, that position will give them in the end. The moment we understand that difference, we stop arguing over positions or we stop arguing quite so much about positions and start working towards solutions that actually work better than that. Before we end today, I'd like to leave you with this reframe. The solution you're fighting for may not be the need you're trying to meet. Take a few minutes and ask yourself, one, what am I asking for? Two, why does it matter so much? And three, if I couldn't have that exact outcome, what need would I still want to honor? Write down your answers because that works better than just thinking about them.
(17:05):
Then before your next difficult conversation, ask yourself this. Am I defending a position or am I protecting what really matters? The moment you understand your interests, you create more possibilities than your position ever could.
(17:24):
Thank you for joining me for another episode of the Emotionally Savvy Divorce Series. Today we explored one of the most powerful tools in negotiation, understanding the difference between positions and interests. In our final episode, we're bringing everything together by exploring one of the biggest obstacles to good decision making during divorce, our emotions, because emotional intelligence isn't about ignoring your feelings, it's about making sure they don't make your decisions for you. Until then, remember, the strongest negotiations don't begin with better arguments. They begin with better understanding. If this conversation was helpful, share it with someone who might need it. And if you're navigating divorce yourself, you'll find more resources and episodes at miller-law.com. Make sure to subscribe wherever you get your podcasts.