I recently consulted in a divorce negotiation. While professing to be seeking an agreement, the lawyer for the wife believed it important to negotiate "from a position of strength." To him, it appeared that meant two things:
1. Staking out a position at the outset where his client would certainly have received much more than she might have reasonably been able to expect were the matter to be decided in court; and
2. While making that his position, also making statements about the enormous cost of litigation.
In short, the wife's lawyer, while smiling and stating he was interested in reaching an agreement, was also threatening litigation as a negotiation tactic. In my experience, negotiating in this style is not uncommon for conventional lawyers, and I myself negotiated in that manner for years. It is a way of trying to coerce or manipulate the other party to agree to something that is otherwise disagreeable.
The problem of negotiating in this commonly-accepted manner arose immediately. Instead of having its desired effect, the husband and his lawyer both immediately became defensive. "That's outrageous!" was the immediate reaction. The wife's lawyer had placed into motion what Harvard professors William Ury and Roger Fisher describe as the "power paradox:" By using power to try to achieve a goal, you create resistance, making achieving that goal less likely. The reduced likelihood of achieving the goal is not because the goal was unreasonable, but because of the means used. And, that is one of the fallacies of the myth that one must negotiate "from a position of strength."
Negotiating that way also reduced the credibility of the wife and the wife's lawyer in the mind of the husband. This was because the husband reacted to the incongruity between the lawyer's statement that the wife desired to settle and the barely concealed threat of litigation. The threats were inconsistent with the stated desire of the wife, making the lawyer less trustworthy to the husband.
Another problem with negotiating that way is that the wife's lawyer made it difficult to retreat from that initial position without some collateral damage. In other words, because of the disappointment when the extreme offer was rejected, the wife came to feel resentful about any settlement that she did deem as advantageous to her as her lawyer's idealized initial position had been. After all, her lawyer had blessed it.
What the wife's lawyer did do correctly was to negotiate from a place of having knowledge. That lawyer understood the facts of the case thoroughly. For a successful negotiator, that type of preparation is very important. However, he then sabotaged his own ability to use that knowledge to his advantage by making threats and thereby cutting off the listening of the husband and the husband's attorney and setting into motion the "power paradox."
Negotiating in a divorce is difficult because divorce inherently raises fear and insecurity. To successfully and efficiently reach a good resolution generally means that all parties be engaged in a constructive problem-solving process. For that to occur, all parties need to feel sufficiently safe to be willing to participate. And, rather than defensively negotiating "from a position of strength," learning with an aim towards understanding is more likely to lead towards a good divorce settlement.
One of the reasons I like Collaborative Divorce is that its very structure that creates a disincentive to use the ineffectual and problematic method of negotiating from a position of strength.