A Conflict of Interests – Focus on what matters rather than on what happened

You want one thing and your partner another. We tend to view what is fair from our own perspective, which just makes matters worse. When you reach an impasse, you may be tempted to call in the lawyers. If this is you then there are some things you should consider at the outset.

Conflict management v conflict resolution

Firstly, the terms are not synonymous.

Conflict resolution involves the reduction, elimination, or termination of conflict.

Conflict management minimises the negative outcomes of conflict and promotes the positive outcomes of conflict, with the goal of improving the overall situation.

In reality both skill sets are needed. Not all cases proceed on an amicable and constructive basis when, particularly at the start, both parties bring entrenched positions and a sense of hurt and grievance to the table. The skill of a good family lawyer is to guide and advise you through the process to a successful outcome.  

Conflict management and conflict resolution skills are NOT superpowers, but they are what you need in your family lawyer.

Getting off on the right foot

In an ideal world you would not need to consider conflict at all, but whether a conflict erupts at work or at home, we frequently fall back on the tendency to try to correct or educate the other person in order to persuade them that we’re right—and they’re wrong. Deep down, we know that this conflict resolution approach usually fails to resolve the conflict and often only makes it worse. So, avoid this temptation and seek help and advice at the outset from someone who has proven skills in this field.

As experienced family lawyers we know that clients can fall into a number of common cognitive and emotional traps, many of them unconscious, which can exacerbate conflict and contribute to the need for conflict resolution. Here is how you can help yourself and your lawyer get you the successful outcome you naturally want and in so doing reduce your legal fees.

Recognise that all of us have biased fairness perceptions

Both parties to a conflict typically think they’re right (and the other side is wrong). Our sense of what would constitute a fair outcome is biased by egocentrism, or the tendency to have difficulty seeing a situation from another person’s perspective. When embroiled in a conflict, we need to try to overcome our self-centred fairness perceptions.

Avoid escalating tensions with idle threats and provocation

Let’s be honest, if we are feeling ignored, duped and bullied, we often try to redress the balance by making threats that should properly remain in the poor scripts of a court room drama e.g. “I’ll see you in court” – said no capable or respectable family lawyer….. ever!

Of course, court action should be taken if necessary, but it should not be the default position. There’s a time and place for litigation, but threats and other attention-seeking moves, such as “take-it-or-leave-it” offers, are often a mistake. People tend to respond to threats in kind, leading to an escalatory spiral and worsening conflict. Before making a threat, be sure that the action threatened is proportionate and that you really mean it.

Throw away the “us versus them” mentality

If you want to save on stress and unnecessarily high legal fees then this is the golden rule. It really will not help to promote suspicion and hostility towards the other party and their advisers. Remember- people in conflict tend to have an inaccurate understanding of each other’s views and to see the other’s positions as more extreme than they actually are. You can overcome the tendency to demonise the other side by looking for an identity or goal that you share. Our conflict management approach is focussed on highlighting the common goal of reaching a fair and sustainable agreement with the other party. The more points of connection you can identify, the more collaborative and productive your conflict resolution process is likely to be.

Identify what is really going on

Seek to identify deeper issues. The most toxic disputes often involve money and betrayal. Nothing hurts more than being disappointed by a person that you thought would never hurt you, but money is a finite resource and not to be wasted by linking the two issues. The law doesn’t, so neither should you.

In the context of family law, a dispute over money is rarely a single-issue battle. Disputes over money often involve much deeper causes of conflict, such as the feeling that one is being disrespected or overlooked. Take time to consider each other’s deeper concerns and you will be a real asset to your lawyer in devising creative ways to address those concerns within the process.

Is it really a sacred issue?

Conflict management can be particularly intractable when core values that negotiators believe are sacred, or non-negotiable, are involved, such as family relationships, or personal moral codes. We tend to err on the side of not negotiating when sacred principles and values are at stake. You need to know when to negotiate and when to fight. It’s important to thoroughly analyse the benefits you might expect from a negotiation.

Methods of conflict resolution

Conflicts can be resolved in a variety of ways, including negotiation, mediation, arbitration, and litigation.

Negotiation- think “deal making”. We aim to explore the interests underlying the parties’ positions. We encourage you to consider what you will do if you fail to reach an agreement within your desired timeframe. By brainstorming options and looking for tradeoffs across issues, you are more likely to be able to negotiate a satisfactory outcome to your dispute without recourse to formal dispute resolution methods.

Mediation – enlisting a trained, neutral third party to help you reach a consensus. Rather than imposing a solution, a professional mediator encourages the parties to explore the interests underlying their positions. Working with parties both together and separately, mediators seek to help them discover a resolution that is sustainable and entered into voluntarily.

Other methods of alternative dispute resolution

Round Table Meetings

Sitting around the table in order to discuss issues is often an extremely effective way to move a dispute forward. A Round Table Meeting (RTM) is simply a meeting where the parties and their legal advisors can meet, with the objective of seeking a mutually acceptable resolution to their dispute. The meeting takes place on a without prejudice basis, which allows the parties and their advisors to speak freely without fear that what is discussed will later be used against them in court proceedings if they cannot reach agreement. Such meetings can take place prior to, or during court proceedings. The agreement to meet can often change the tone of the dispute from a combative process to a more collaborative one and “deal blocking” points can be overcome.

If agreement can be reached there will be a significant saving in legal fees. As there is no independent evaluator, arbitrator or mediator the associated fee of such a person is avoided. RTMs also have the great advantage of being an opportunity to agree matters that the court simply cannot order in the event the dispute is determined by a judge. When working together to resolve the dispute the parties have the ability to control and be creative in their settlements.

The Financial Dispute Resolution hearing (FDR) is an important without prejudice hearing within the court process and is supposed to provide the parties with an early neutral evaluation where a judge expresses a view about the likely outcome of the dispute in order to encourage the parties to settle before the costs of a fully contested to trial are incurred. It is important to note that the judge does not have the power to impose an order on the parties, if they do not reach agreement on the day. Due to congested court lists (only made worse by COVID-19) the parties often have to wait a considerable amount of time for their FDR to be listed; the allocation of the FDR judge is a lottery- the parties cannot choose, and they may be faced with a judge who has not had time to read the papers and prepare fully. This leads to a great deal of client and lawyer frustration. To avoid this situation many of our clients elect to have a Private FDR, where the evaluator is often a part time family law judge or senior family law barrister, agreed by the parties in advance and who is paid to conduct the meeting and provide the parties with a neutral evaluation to encourage them towards settlement. As with court-based FDRs the evaluator has no power to impose a settlement on the parties if they cannot agree.

Private FDRs offer great advantages in that:

  • They can happen before court proceedings are started or at any stage in the court process pre-trial
    There is very little delay
  • The parties have the power to choose the evaluator in whom they and their lawyers have confidence
  • The evaluator will have had the opportunity to read the papers and prepare fully for the meeting
  • The meeting can deal with all or any aspects of the dispute which the parties wish
  • The meeting can take place at a venue of the parties’ choice

Arbitration – so you have tried some, or all of the above, what next? In arbitration, which can resemble a court hearing, a neutral and legally qualified third party acts as a judge who makes decisions to end the dispute. The arbitrator listens to the arguments and evidence presented by each side, then renders a binding and often confidential decision. Although the parties typically cannot appeal an arbitrator’s decision, they can negotiate many aspects of the arbitration process in order to narrow the issues in dispute before the arbitration starts.

Litigation – the “traditional” and most costly method – if you have offered to engage in arbitration or other forms of alternative dispute resolution and the other party is simply not interested then this is your only option when a true impasse is reached. Negotiations will continue along the way but ultimately, if you cannot agree, then there will be a series of court hearings, leading to a final hearing before a judge, who will consider the evidence; the needs of the parties and any dependants and make a ruling.

For an initial FREE consultation on any aspect of family law, call Manders Law on 01245 895 106 or email us here.

Note: this blog is intended to give an overview (rather than comprehensive guidance and advice) on your legal or financial position and is provided for information only. It is not an endorsement of any product or service provider.

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