Estate Planning

To Fight or To Settle?

By Hull & Hull LLP

The Globe and Mail recently featured a new book, Bargaining with the Devil: When to Negotiate, When to Fight, by Robert Mnookin. In reading the article, I was impressed with how relevant the discussion was to estates matters.

In the article, Mnookin says that some of the most difficult conflicts to negotiate are those where the adversary is seen as being untrustworthy - an adversary "who's either harmed you in the past or is out to harm you in the future and whom you may even think is evil." Matters in the estates context often pose these types of challenges. Disputes amongst family members often arise out of a lack of trust, and in many cases, the other family member is labelled as "evil". 

Further, in the estates context, emotions often run high. This, says Mnookin, is usually an impediment to a negotiated settlement. "Strong emotions can get in the way of clear thinking."

Mnookin also points to another impediment to negotiated resolutions that we see in many estates matters. In many cases, parties to a negotiation are wary of settlement because it is believed that what is good for their adversary is bad for them. Mnookin refers to this as "zero-sum thinking".

Taken a step further, even if a settlement is good for a party, it is often not acceptable to that party because the party does not want to let the other side off easily: the party wants to punish the adversary for what they have done, or for what it is believed that they did.

Mnookin concludes by noting that in many cases, emotion wants to fight, even though this may not be in your best long-term interests. However, there are other cases where the fight really is the better alternative.

Thank you for reading.

Paul Trudelle

Full post as published by Toronto Estate Law Blog on March 01, 2010 (boomark / email).