Robert Mnookin, head of the Negotiation Program at Harvard Law School (and one of my favourite writers on conflict resolution) is interviewed in today’s Globe and Mail. What he has to say is directly relevant to the dilemma faced by every family lawyer and family law client: what kind of strategy is best?
It is wrong to assume, he says, that negotiation is always going to be the best choice for a client. The best conflict resolution strategy will depend on the circumstances. “What are your alternatives? Do you have a good legal remedy? If you do, what are the costs of pursuing it? How good are your chances of winning?”
His point is simple and directly applicable to family law. Before deciding whether to negotiate, mediate, litigate or sign a collaborative law agreement, every client should carefully assess the costs and benefits of each option.
And once a process is chosen, strategy ( when to negotiate positionally and when to negotiate based on each side’s interests, for example) should also be determined only after a careful diagnosis.
That of course is easier said than done. Assessing all the elements of one’s “alternatives” is complicated in divorce. Mnookin talks in the interview about the strong impact that emotions can have. Emotions, he says, get in the way of clear thinking. Emotions can make it hard for people to understand that a “win” for the other person is not necessarily a “lose” for them. Often, he says, we feel that “even if it is better for me, the notion that there should be an arrangement that’s better for them is bad because they deserve to be punished.”
This is why good family lawyers are trained to “screen” all new clients for, among other things, the personality and emotional state of both parties before recommending any process or strategy.
His bottom line is that most people should try to negotiate, even though they won’t feel like it. Negotiation means accepting that your long term interests may require you to abandon your “principles”; for many people, that is very hard to accept.
So, what negotiation process will work best for what clients? The blogs to follow– including those written by guest contributors like Victoria Smith and Ken Nathens, will try to answer that question. When is mediation worth trying? When might collaborative law be a good choice? When is traditional lawyer-lawyer negotiation the best option?
One Comment
Hilary Linton was mediating years before alternate dispute solutions became fashionable. She combines knowledge and diplomacy with authority — a rare but winning combination when it comes to “getting to closure”. As a family law practitioner always searching for the best process to serve the client, I know that solutions have identities, and the identity of the mediator who can facilitate settlement is critical.