Walking Away Equally Unhappy

Ever hear the phrase “a good negotiation is one where both parties walk equally unhappy?”

I’ve heard it attributed to various negotiation programs, and always intuitively knew it felt wrong. Applied to the metaphor of relationships, which I feel is a better metaphor for matters of trust, it comes up wanting.

In the relationship metaphor world, “both parties walking away equally unhappy” is a recipe for divorce.


I figured that for a tidy little blog topic, so I googled the phrase “walk away equally unhappy”—but found only eleven instances in total.

Of the eleven, only three used the phrase approvingly: once by a divorce attorney, once by an estate lawyer, and once by an online commenter talking about buying used cars online. Hey, I just report the news.

Most uses of the phrase were said by way of disapproval—the bulk coming from Diane Levin. Diane is a lawyer by training, but a mediator by inclination. An early champion of ADR (alternative dispute resolution), it’s clear from her writings (I don’t know her personally beyond her “about me” section) she is well versed in and receptive to the idea that one plus one is very much what we make of it.
Whether the arena is corporate negotiations or divorce or contract disputes, her motto is “only connect,” which she does online as well as in real life. Negotiations need not be adversarial interactions; each such interaction is another opportunity to create unlimited value.

At the risk of appearing un-objective—she is completely right.

Yul Brynner reportedly said, “We come into this world alone, and we leave it the same way; if someone offers you friendship along the way, you don’t spit on it.” That’s the minimalist, barebones, ironic statement of the proposition. It’s true even said that way.

We have a choice about how to deal with others. We can take the risks of trusting, and of being trusted. Or we can shut down. If we do the former, sometimes we get burned. That’s life.

Butif we spend our lives, and build our institutions, and conduct our economies, so as to avoid getting burned, we end up losing our life too. Just a little more slowly, and qualitatively. But no less in the end.

Kudos to Diane, who won’t settled for people walking away equally unhappy. Good for you.

Trust with the Ex: Taking Insanity Out of Divorce


A good rule of thumb if you’re going through a divorce: at this time, every thought and instinct you have is wrong.

Most divorces I know of are breeding grounds for resentment and bad behavior. The desire for revenge overwhelms most decent and sensible instincts.

There are two reasons divorce so often turns out this way: human nature, and legal nature.

Our baser natures, I think, are focused on self-preservation—including psychologically. That means we react from fear—never a good thing. And nothing hurts like the one who said “I do” saying “I don’t.”

Lawyers operate in a profession where there is no concept of truth—there is only evidence. And marriage—being a civil contract—has grown to be subject to the usual legal framework—opposing interests, plaintiffs and defendants. Husband meets wife in a court of law, to determine a winner and loser. A worse formula for amicable separation is hard to imagine.

Some argue this is fine: it is in society’s interest for it to be difficult to divorce. Maybe—but when you’re the individual, it doesn’t feel good taking a bullet “for society.”

Paradoxically, divorces—if navigated well—can be enormous opportunities for personal growth. To retain one’s self-worth, to choose the long-term over the short, to remain magnanimous under stress, and to choose compassion over revenge—these are all higher-order acts.

Some initiatives within the legal profession move in a more human direction—in particular, mediation and collaborative divorce. In Keen Interest in Gentler Ways to Divorce, AP reporter David Crary lays out the case.

Both mediation and collaborative divorce are far cheaper, for one thing:

[The Boston Collaborative] analyzed 199 of its recent divorce cases, and found that mediation, collaborative divorce and litigation all produced high rates of successful settlement. Mediation was by far the least expensive option, with a median cost of $6,600, compared to $19,723 for a collaborative divorce, $26,830 for settlements negotiated by rival lawyers, and $77,746 for full-scale litigation.

It also gives lawyers a way out of a nasty business:

Most of us had that moment where we realize the adversarial process is so damaging for our clients — and there’s a recognition that we can do better," said Talia Katz, a former divorce lawyer who is executive director of the International Academy of Collaborative Professionals.

The forces of Good also seem to be winning a few rounds:

Supporters of collaborative law were dismayed last February, when the Colorado Bar Association declared such arrangements unethical on grounds that they prevented a lawyer from exercising undivided loyalty to a client. But in August, the American Bar Association’s Ethics Committee weighed in, endorsing the collaborative process as long as clients were fully informed about its provisions.

People have written that divorce is bad for children; I think it’s the typical divorce that is bad for children. A mediated or collaborative divorce offers the possibility of continued respect between mother and father, thereby not confusing their children for life.

I’ve written elsewhere (Trust in Business: the Core Concepts) that trust can be deconstructed into four components. The most powerful of them is a low level of self-orientation of the one who would be trusted.

I can think of few things that drive us more toward self-orientation, and therefore untrustworthy behavior, than the whirlpool of divorce—as usually practiced.

Sometimes Spouse A suggests collaborative or mediated divorce; yet because of resentment, low trust, etc., Spouse B rejects the opportunity—precisely because it was suggested by Spouse A. Little do they know how much that first sip of poison will infect the rest of their lives.

If you know someone who’s getting divorced, urge them—strongly—to read up on mediated or collaborative divorce.

If you’re getting divorced, and your spouse has suggested it—thank your stars that the one you used to be in love with still has enough respect for your marriage to consider ending it decently.

If you’re the one in a position to initiate it, do yourself and everyone else a huge favor. Mediate, collaborate—don’t litigate.



High-Tech Divorce

The nastiness level of divorces has been going up, thanks to technology, according to the The New York Times Business Section’s Tell-All PCs and Phones Transforming Divorce on Sept 15, 2007.  Bits and bytes are subpoenaed or surreptitiously obtained from cellphones, blackberries and PCs, and used to deadly advantage by plaintiffs and defendants alike in divorce cases.

This can’t be good for the causes of marital therapy or divorce mediation.

On the other hand, private investigators and lawyers make out well.  And all this technology is causing privacy laws to be rewritten.

This story is being written as being about privacy: how technology is increasingly invading privacy, and how our laws are evolving to protect—or not protect— our privacy.

But is it just about privacy?  What about trust?

What’s striking about the article is it’s an equal opportunity horror story.  It’s horrible to find out the awful things your spouse was doing all those years, the article suggests.  Yet it’s equally horrible to find out that your spouse is planting GPS devices on your car or hiring PIs to track down your every little cyber-indiscretion.

So, which is it? Is it worse to be the spy? Or the spied upon?

The subtext of both is victimhood, and an unwillingness to take responsibility. In short, a shortage of trust.

If I conduct a long-term affair, with elaborate attempts to hide it, then basically I’m a schmoe without much moral ground to stand on. If my spouse discovers me, I have little ethical room for indignation.  I have violated her trust.

If I suspect my spouse of conducting an affair, and choose to buy covert screen-copying software or filch her Blackberry rather than directly and calmly confronting her about my suspicion—then I am a sneak and a thief, and have already convicted her in absentia by my decision to go covert.

Some may quibble about the relative nastiness of each side, but basically it’s all ugly. It’s all about mistrust, lying, and the inability to constructively confront.

What it’s not about is privacy laws. Yet that’s the buzz.  Is email admissible in court? If it was a family computer, maybe so; if not, maybe not. Were passwords shared?  Then emails may be admissible.  And so on.

That’s how we get statements like this, from the article:

“If I were to tell you I have a pure ethical conscience over what I did, I’d be lying,” he said. But he also pointed to companies that have Internet policies giving them the right to read employee e-mail messages. “When you’re in a relationship like a marriage, which is emotional as well as, candidly, a business, I think you can look at it in the same way,” he said.

When did a marital  “ethical issue of conscience” become directly comparable to corporate policies on reading employees’ email?

When we started defining issues of ethics and trust solely in terms of issues of the law and privacy, that’s when.

Technology certainly raises interesting issues about privacy, as it does about private property and copyright law, for example.  But when you have a hammer, the world can look like nails.

We have a hammer—technology. The world is starting to look like the nail of the law—the answer to privacy, property rights, and patent issues.  We need to remember there are also screws and glues, not just nails.  There are relationships, trust, respect, virtues, transparency—even marriages. 

If you have to define marriage solely in terms of legal privacy rights, you might as well be describing flood insurance policies.  Same for any relationship.

Privacy matters can sometimes be trivial next to trust matters.