If you are facing a family will dispute or an estate dispute, and you want to stay out of court, you will need to be prepared to negotiate in order to reach a settlement.

In addition to preparing for the negotiation by avoiding positional bargaining and doing your best to find common ground and the win-win for all parties, here are our three top tips for negotiating well while in any settlement meeting.

1. Stay calm

There are two things that can’t be undone – a stone’s throw and a spoken word.

The neuroscience behind negotiation is fascinating. It’s valuable to have some understanding of what you and your family members will likely experience during a negotiation so that you are prepared for it, and so that you know how to cope with it.

For this reason – and it sounds clichéd but bear with us – the most important piece of advice we give to clients who are about to embark on negotiation is to stay calm.

Here’s why. We all know what it is like to react to things in the heat of the moment; when we do or say things that we regret later in response to something that we perceive as a threat or an insult. This immediate, emotional and often disproportionate reaction was first described by the author of Emotional Intelligence, Daniel Goleman, as an amygdala hijack.

What’s an amygdala hijack? It is an involuntary brain response. The frontal lobe is the part of our brain responsible for our logical thinking and conscious thought. The amygdala is the part of our brain responsible for our emotional reaction. If something happens that we perceive as a threat or an insult, our amygdala can literally hijack our frontal lobe (our logic) and cause us to react in a way we wouldn’t otherwise.

During a negotiation, whether it be face to face or by an exchange of letters, it is highly likely that someone will say or do something that will push your buttons and trigger an emotional reaction in you. When that happens, adrenaline and cortisol is sent coursing through your body and you become ready for a ‘fight or flight’ response. It might cause anger, fear, upset or confusion – or it might just make you want to give up.

Research shows that the effects of an amygdala hijack can last a bit like a hangover, sticking around for up to four hours until our brain and body recovers to the point where it can once again function logically and rationally.

That’s the bad news. The good news is that you can train your brain to deal with that type of hijack quickly.

You have probably heard it said that if you are angry, you should count to ten before responding. From a neuroscience perspective, this is actually a very effective tool to use. Why? Because it makes you ‘switch on’ your frontal lobe, which is the part of the brain you need to use in order to commence being logical and rational.

The other really effective tool is to take some deliberately long, slow, deep breaths. This works in two ways. First, it forces your logical brain to focus on the task. And second, in taking those breaths, you stimulate your parasympathetic nervous system, which gives you a feeling of calm and peace.

While these strategies can be useful to help you cope in the heat of the moment during a negotiation, research has shown that if you mindfully practice being calm every day – by breathing, meditating, praying, journaling and so on – you will burn new neural pathways in your brain, altering the way in which your amygdala reacts.

If you work at staying calm on a daily basis, you will give yourself the very best chance at making good, rational decisions for yourself and your future life. If you work at staying calm in the settlement negotiations you will give yourself the best chance of reaching resolution.

2. Think outside the box

Rather than resorting to the imposition of a concept of fairness that only ends up leaving everyone disappointed, outside-the-box thinking is needed to come up with solutions that meet the needs of all parties.

Once you are clear about what ‘part of the orange’ (discussed in our blog Finding the win-win) you (and your family members) are really after, it is time to unleash your creative brain to see if you can generate a range of options that might achieve the outcomes for everyone. Brainstorming is great for this – without filtering or analysing, we just write down all of the crazy ideas that pop into our minds. Sometimes we do this on a whiteboard with clients, or we take notes on a piece of paper. We take turns in coming up with as many options as we can, saying them out loud and then writing them down. We encourage clients to think outside the box when negotiating for their ideas about how to solve the issues in dispute. In fact, it’s often better to throw the box out altogether!

Ideas that arise during brainstorming might not all be viable, but opening everyone’s minds to different solutions paves the way for constructive discussions, and cajoles people away from taking a position and then not budging. We have seen the crazy ideas become the backbone of a creative solution that is massaged into something everyone is happy with.

Once you have let loose and brainstormed all of the options you can think of, then it is time to analyse each one. List the pros and cons. Consider which ones align with your values and goals, and then think about how your family members might respond if they were put to them in an offer. If you take this extra step of putting yourself in the shoes of another, you’ll likely get a feel for whether it will be acceptable to them. After all, you will know your family members better than any lawyer will.

Doing this analysis usually results in two or three options that seem more viable than the others. These are the ones that you might want to raise with your family to see if a resolution can be reached. If you decide to do so, then take your time to frame the options in the most attractive way. Presenting your proposed solution in a way that highlights the needs and values of your family members will give it the best chance of being properly considered and accepted.

Even after doing this analysis and coming up with options, try to keep an open mind if other options are generated by your family members for consideration. Analyse each option in the same way as you did your own. Consider it in light of your own values and needs, think about the pros and cons, and look at how that solution could be adapted.

Don’t get stuck on there being only one way you are prepared to resolve the dispute. If you take the approach that ‘it is my way or the highway’, you will find yourself on the highway straight to court!

3. Remember, this is your life

This is your life. You need to be the one in the driver’s seat. Sure, you may need some advice from lawyers, counsellors, financial planners, accountants and friends to help you navigate – but ultimately, only you can make the decisions on which road you want to take. You need to think about the life you’re going to lead beyond the negotiation process, when you won’t need these sherpas at your side.

The loss of a loved one can leave you feeling like you are in unfamiliar territory. Sometimes, as you try to get your bearings again, you will discover that things that once were important to you are not that important anymore. And sometimes the important things that you had neglected become the glue that helps you to reshape your new life.

If you are willing to take the time to work through your own values and needs carefully, and make your negotiation decisions based on those values, they will be the ‘right’ decisions. This is because they will be the ones that you will be most content to live with.

As you go about your negotiations, then, keep in mind the bigger goal – getting on with living your life.

There is no one answer to ‘how to settle estate disputes’ BUT entering any negotiation regarding your family dispute with these tips in mind, can only assist you to reach a settlement with an outcome where you (and the other parties) come to an agreement that is most suitable for the future.

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 which out of court resolution pathway best suits you.

We have tried to keep legal jargon to a minimum on this website and in our blogs, but we have included an easy to understand glossary to help you better understand the legal terms you might see along the way.

Zinta Harris

Meet Zinta

Founder and Principal of Resolve Estate Law. Accredited Specialist Business Law (Qld) and Accredited Specialist Succession Law (Qld). TEP Society of Trust and Estate Practitioners.

I am Zinta Harris. I live in Brisbane, Australia with my husband of 25 years, Craig (known by most as Harry) and our two children Teja and Zigi. I am a specialist wills and estates lawyer by day and inspiration seeker by night. I help Australian families navigate the legal fallout after the loss of a loved one in a calm and compassionate way.

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