“Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser in fees, expenses and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man.” – Abraham Lincoln
In our experience, the most successful negotiations happen when all parties are committed to an interest-based negotiation style (as opposed to positional bargaining). All this means is that the parties negotiate with a common commitment to trying to reach a compromise that will best meet all parties’ respective goals and needs.
This style of negotiation aims for mutual gains. It looks for ways to give each party more of what they want and value, rather than engaging in a win-lose negotiation or having parties cave in to avoid further conflict.
One of the simplest ways to explain interest-based negotiation is an illustration first used in the book Getting to Yes: Negotiating Agreement Without Giving In written by Roger Fisher and William Ury. Below is a story based on that illustration:
Imagine there are two sisters fighting over one orange. Both want the whole orange, and the argument escalates before mum steps in. In an effort to stop the fighting and to be fair to both children, she grabs the orange and cuts it straight down the middle to give each child an equal half.
But the whinging she was trying to put a stop to continues and escalates! Why?
Little Emily explains that she needed as many whole seeds from the orange as possible to win the seed count competition at school and the knife had cut through 5 of them. Little Lucy wails that she needed the whole orange because her class was having a competition to see who could peel the longest orange rind in one continuous spiral!
If only the girls had spoken to each other to explain what they wanted. If only mum had stopped to ask both girls what it was they needed out of the orange – then both of their needs could have been met. Lucy could have painstakingly peeled off the orange rind and Emily could have then had the fruit to pick out all of the seeds whole for the competition.
Before you do anything else, you need to know what it is you want out of the proverbial orange – and what you think your family members want out of it.
“A compromise is the art of dividing a cake in such a way that everyone believes he has the biggest piece.” – Ludwig Erhard
If your lawyer can understand why you want or need something in a settlement, it will make it so much easier to formulate solutions that will work for you and your other family members. For example, a spouse in contest with adult stepchildren might wish to keep the house, not usually for any percentage value of the estate, but to give them security, continuity and normalcy in the area they’ve been living in, supported by existing friends and social networks.
It is also important to realise that people have different perceptions about what is a ‘fair’ or ‘equal’ split. Fairness, like beauty, is in the eye of the beholder. What seems fair to you or your family members might be quite different, perhaps even from what your deceased loved one thought was fair. In our experience, clients usually have a figure of money or a percentage of the estate in mind, not through some clear formula or system, but because they have worked out what they need for their own financial security or because it is what they think is ‘fair’.
If, when you start to formulate your settlement proposal, you are able to explain why you are proposing a particular outcome, and show willingness to consider other ways to get to that outcome, your proposal will be harder to argue against. What’s more, it will give your other family members and their lawyer a greater insight into how a win-win settlement could be structured.
At Resolve Estate Law, we always try to encourage our clients to negotiate in this ‘interest based’ way, not only because it is more likely to lead to a ‘win-win’ outcome for all, but because it lets all parties consider what it is they ‘want’ or ‘need’ out of the estate and negotiate around that.
If you want to resolve your family estate dispute without going to court, we are here to help. Contact us by phone or email, or click here to arrange your complimentary 15 minute call to discuss how you can use these negotiation techniques to assist in the resolution of your family estate dispute.