Legal Disputes Where Emotions Override Reason
Negotiating with a colleague or client can be complicated, but negotiating with a family member can cause us to leave reason at the door. Negotiating with family, where emotions are heightened, can lead to a reluctance to compromise. This is especially true when it comes to legal disputes between family members.
The Teaching Negotiation Resource Center (TNRC) has a variety of negotiation simulations dealing with legal disputes between family members. Three of the best are George and Martha, The Carter Estate Problem, and Ellsworth v. Ellsworth.
George and Martha
This two hour, two-party integrative negotiation is between representatives for a divorcing couple over the amount of child support payments. George and Martha are about to be divorced, and have reached agreement on all issues but one–child support. They are in different tax brackets, and value child support and alimony differently. Major lessons include:
- This case illustrates the danger of single-issue bargaining. Should the participants limit the negotiation to a monetary dispute, George and Martha will be locked in a contest of wills.
- Despite George and Martha’s diverging preferences in characterizing payments, it is possible to obtain mutual gain by trading on the two parties’ attachments to their relative interests.
- The failure to identify interests and invent options in a negotiation may lead to failure to reach any agreement, let alone an optimal one.
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The Carter Estate Problem
This two hour, two-party, multi-issue integrative negotiation is between brothers over the settlement of their father’s estate. James Carter, husband of Rosie Carter and father of Ron and George Carter, recently died after a four year battle with an undisclosed illness. Having plenty of warning, Mr. Carter (also head of the successful family cosmetic business) carefully planned for the disposition of his assets upon his death. The majority of issues surrounding the settlement of his estate have been resolved, however, a few minor issues remain unresolved. The first dispute concerns Mr. Carter’s lakeside retreat. Secondarily, there are concerns over the distribution of some of Mr. Carter’s personal effects, including a membership in the Metropolitan Club and the award-winning, family dog, Bonzo. Major lessons include:
- This exercise presents the opportunity to use a careful analysis of the interests of the parties to craft an agreement to solve a dispute.
- This exercise illustrates the danger of single-issue bargaining. Should participants limit the negotiation to a monetary dispute, Ron and George will be locked in a contest of wills. Hard bargaining may well emerge, resulting in a situation in which one party’s gain means a corresponding loss to the other party.
- Good negotiators put the distributive issues in this case in perspective and reduce their importance by dovetailing interests with creative options that expand the pie. This case has an enormous potential range of such creative options.
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Ellsworth v. Ellsworth
This four hour, two-party, multi-issue negotiation between lawyers for a divorcing couple over the terms of the divorce, including alimony, child support, and income tax issues. Bill and Ellen Ellsworth are in the midst of a heated divorce. Mrs. Ellsworth instituted a divorce on the grounds of physical and mental cruelty. Her attorney will meet with Mr. Ellsworth’s attorney to try to settle out-of-court. The issues with which both sides are primarily concerned are those of alimony, child support, medical insurance, ownership of family residence, custody of the children and visitation rights, division of securities and savings, and legal costs. Major lessons include:
- The complexities of this simulation provide a good testing ground for the overall negotiating sophistication of participants.
- Good preparation for the case requires extensive analysis when calculating BATNA’s, deciding what client information must be kept confidential, and anticipating the other party’s demands.
- There is considerable opportunity to exploit joint gains by dovetailing compatible interests and using tax law creatively.
- A variety of ethical issues are raised concerning the disclosure of information to the other side and the balancing of a client’s long-term and short-term interests (e.g., revenge).
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TNRC: A go-to resource for more than 25 years
In addition to offering more than 200 negotiation role-play simulations, the TNRC offers a wide range of effective teaching materials, including:
TNRC materials are designed for educational purposes. They are used in college classroom settings or corporate training settings; used by mediators and facilitators seeking to introduce their clients to a process or issue; and used by individuals who want to enhance their negotiation skills and knowledge.
Role-play simulations introduce participants to new negotiation and dispute resolution tools, techniques and strategies. Our videos, books, case studies, and periodicals are also a helpful way of introducing viewers to key concepts while addressing the theory and practice of negotiation and conflict management.
Check out all that the TNRC has in store >>
