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Why Hardball Tactics Can Backfire

A few lawyers tend to encourage you not to compromise on anything, in order to strengthen your bargaining position. This is the way to maximize the money, custody, or other things which you are "fighting over" with your spouse.

In fact, lawyers who take this approach tend to encourage you to dwell on, and even magnify, negative things your spouse may have done, in order to create legal or emotional bargaining chips. The unexpected side effect of this approach is that it tends to make you angrier than you were before.

As legal proceedings drag on, your feelings of anger and bitterness may intensify. The legal process essentially traps you in a prison of your own making -- the prison of an unhappy past. The results of the legal dynamic in this situation can be to demonize your spouse and to focus your energy on proving that your spouse is responsible for what happened in your marriage, and for your present unhappiness.

Mediators (and mediation-style lawyers), on the other hand, tend to encourage you to put the past behind, as much as possible. They encourage you focus on how you and your spouse are going to live your separate lives going forward. They tend to use techniques popularized in a book on negotiation called "Getting to Yes," by Roger Fisher and William Ury. The book calls for identifying common ground first, and moving slowly on from there.

This approach tends to start a healing and recovery process going. Surely there is plenty of anger, bitterness, and sadness to go around. But mediation tends to humanize the spouses, not demonize them. It tends to view divorce more as the result of different personalities, needs, abilities, and styles, rather than as a contest between good and evil.

Mediation tends to foster understanding, rather than blame. This tends to encourage the view that the divorce arrangements can be separated from the emotional processes of grieving, blame, and recovery.

Legal hardball tactics may win a few extra dollars (and then again, they may not), but the damage to people's lives is often far more grievous than the dollars that may be gained.

Mediation may make you sit down with someone you despise and distrust. But it often lets you get through the divorce and on to your new life sooner and in better overall shape.

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