Have you ever watched a child ‘negotiate’ with their parents? The child takes a position on what they want, and then they begin the nagging campaign. They’re ready with every reason under the sun why they should get what they want, and they just don’t move on that position until their parent finally gives in.

This is called positional bargaining. While you might think that adults don’t behave that way, sadly I see it happen all too often in contested estate matters.

People have a perception from watching TV shows that the way to negotiate is to start at a point well above their ‘bottom line’, with the expectation that the settlement will end somewhere in the middle.

The problems with this approach are that:

  • The settlement becomes far more about a sum of money or things, rather than about what the sum of money or the things might mean for each person’s future,
  • The negotiation process itself can take months at significant legal cost, as lengthy positional emails and letters are exchanged, and
  • The process is usually counterproductive, because playing this kind of ‘negotiation game’ can frustrate family members and their lawyers, particularly when the offers first exchanged are usually ridiculous and unattainable.

Unfortunately, this kind of negotiation style usually begins in the way in which the lawyers for each party advise their client. It is often exacerbated by means of communication, usually letters and emails, which escalate the issues. When lawyers negotiate through correspondence, much time and energy is spent in stating legal positions and outlining facts based on past circumstances in order to ‘justify’ the settlement offer made. This is then followed by similarly lengthy letters in response, which attempt to convince the other side that they are wrong in order to justify the counter offer. Not only can this to-and-fro go on and on, it can also potentially spiral the negotiations into the ground as parties dredge up the next thing with which to accuse each other of! There is no doubt in my mind that the lawyers acting for family members and those appointed as personal representatives of the estate can make or break a contested estates matter.

Positional bargaining will potentially derail a negotiation, making all parties jaded and unwilling to approach any subsequent court-required mediation genuinely. It is, in my view, a negotiation style that should be avoided.

If all parties are represented by lawyers committed to early resolution, then you will have a far greater chance of reaching settlement early. If any one of the parties is represented by a lawyer focused on positional bargaining and pressing the matter through the court process, then little can be done to avoid that pathway.

You can see why positional bargaining might not always lead to a ‘win-win’ outcome for all parties, it can be a long and drawn out process and cost you both financially and emotionally. If you want to know how to keep your family estate dispute out of court then keep an eye out for our Art of Negotiation series that will be coming out over the next few weeks:-

  1. Finding common ground,
  2. Finding the win-win, and
  3. How to negotiate like a pro.

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.

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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