At times during your family law or divorce case, you will have the opportunity to make and receive proposals. Whether large or small, proposals are the backbone of negotiation.
A proposal is defined as a plan or suggestion, especially a formal or written one, put forward for consideration or discussion by others. During your negotiation, you will need to look at many different options and ideas for how to settle issues in your case. Proposals, even imperfect ones, serve an important role in moving the negotiation process forward.
If you are the party making a proposal, keep the following goals in mind:
Make It Specific. The proposal should be specific in its scope. A proposal is specific if it can answer the questions of “who, what, where, when and how.” Including as much detail as possible helps reduce ambiguity.
Less specific: “The children will be with Mother on every Tuesday.” Is less specific.
More specific: “Mother will pick up the children from Father’s house every Tuesday at 3 pm and will return the children to Father’s house on Wednesday at 3 pm.”
Specificity reduces miscommunication and misunderstandings.
Make It Realistic. The proposal should be realistic. Don’t make a proposal you know the other party won’t or can’t accept. You want to make proposals with a chance of being accepted.
Make It Possible. Be sure your proposal is something possible to do in the real world you live in. A proposal physically, intellectually, or emotionally impossible to perform really is a non-starter.
Based on Rational Evaluation. Especially in family law, it’s tempting to make a proposal based purely on emotional needs without rational evaluation. While your emotions are important, it is important your decisions are based on a rational evaluation of the facts.
Steps For Reviewing and Responding To A Proposal
If you are the party receiving a proposal, you should take the following steps:
Ask Questions. Make sure you understand the proposal before reacting. This is your opportunity to ask any clarifying questions before you decide whether or not to accept. If there is specific information you need before you can decide on the proposal, please be specific in letting your mediation team know what information you still need. It’s not helpful to simply accept or reject a proposal you may not understand. Take the time you need to be sure.
Respond. After you are sure you understand the proposal, there are three ways to respond:
- “I accept the proposal.” If you agree with the proposal, you accept and everyone moves forward to memorialize your agreement.
- “I do not accept your proposal, but here is my counterproposal.” If you do not accept the proposal, it becomes your responsibility to provide a counterproposal. If you would like to brainstorm ideas for a counterproposal, let your mediator help.
- “I need to think about it.” If you are not prepared to make a decision yet, that is perfectly understandable. You need not be rushed into a decision. You are encouraged to confer with counsel before agreeing to anything. If you need some time to consider the proposal, please provide your best estimate for your response whether you accept or offer a counterproposal.
Failure is Not An Option
You may notice “rejection” is NOT on the list. A blanket rejection without a counterproposal will simply halt negotiations. If a person rejects a proposal, that person has a responsibility to make a counterproposal.
Remember, there is no such thing as impasse in mediation! When you are stuck, it doesn’t mean you storm away from the table and declare a failure. It just means you and your mediation team haven’t found the right proposal yet.
But we will! Keep at it and be persistent and creative. You’ll get there. You might be surprised where you ultimately land if you keep an open mind to the possibilities.
For further reading on proposals, see:
Getting to Yes: Negotiating Agreement Without Giving In by Roger Fisher and William Ury