The following discourse comments on how negotiation as a method of conflict resolution may be used in commonly encountered family law situations.


The Fighting Instinct – When to Fight and When to Negotiate.


D: Why do so many couples seem to want a big fight when they split up?

M: Wanting to fight a threat is a deeply rooted human instinct. We do as our pre-historic brain tells us. Can't argue with that.

D: In modern times this can be mad - how are people supposed to know when to fight - when to go to court - and when to negotiate?

M: Funny you should ask me that, as I've been reading a fascinating book on “Bargaining with the Devil, when to Negotiate and when to Fight”. The author, Robert Mnookin, is the chair of the Harvard Law School Programme on Negotiation. He advised the US President on whether to fight Afghanistan after the twin towers were destroyed. He looks at famous historical situations and assesses whether people should have negotiated or not. Fascinating. He seems to think the choice partly depends on whether the opponent can be trusted to keep to the agreement. He largely concludes negotiation is best in most but not all circumstances; it depends on the possible outcomes.

D: Many couples demonise their nearly exes. The fact of the separation makes some people feel they must fight or they'll lose out . . .

M: Yes, then some lose out if they do fight. It is absolutely critical to get good legal advice, so you know where you stand. Then you can aim for somewhere reasonable. Just because you're separating doesn't mean you're dealing with Hitler or the Taleban!

D: Some people need to start court proceedings to make anything happen.

M: Yes, where one party will not negotiate fairly or at all. You may need a court application to get things moving.

D: If everyone had a realistic understanding of what they should get at court, then many of them wouldn't go there, they'd negotiate a deal. It's critical to get early and good legal advice you can trust.

M: Then at court always be ready to negotiate. Bear in mind the costs of carrying on compared to the benefit of it. I'm rather proud of the fact that I don't go to court as often as many lawyers do and I have a correspondingly higher success rate, success being measured as getting for the client what I thought they should have. The worst thing would be going for something hopelessly impractical or unfair and the client believing it was what they were going to get and being disappointed.

D: Better tell the client the truth and help them settle, than risk running a loser to court.

M: Yes, sometimes delivering unwelcome advice is an important part of what an honest and conscionable legal adviser must do. Tell the client where they stand, plain and simple. One of the nicest things a client ever said about me was "She knows a lot . . ." That's good enough for me.


Mary Banham-Hall and Dawn Millar advise in Family Law at Heald Solicitors with common sense and kindness. See where you stand - call 01908 662277.