Can you really negotiate anything? (Part 1)
In my last blog, I mentioned the possibility that Gary might be able to convince Harry to use his power of appropriation in relation to the deceased's Fingal Head property. In Gary's mind, living in the Fingal Head property is crucial to enabling him to fulfil his dream of becoming a pro-surfer.
In this blog, I am going to look at negotiation as a means to attaining a outcome - not necessarily the exact outcome that is sought but one that the parties can live with.
All people are involved in negotiation regularly - it may be in their personal lives or in their working lives or, as is usually the case, both.
If we are negotiating with close family members, we may know them well enough to intuitively motivate them to accommodate our needs/wants and endeavour to reach agreement by keeping in mind their motivations. This blog is not about those negotiations.
Here, I am talking about negotiations between close family members between whom there is, as they say, no love lost, with such negotiations being facilitated by their legal advisors. Having said that, there is not much difference between the two scenarios - except that the parties in the second scenario don't necessarily want to accommodate the other party's wants or needs. They may, in fact, want to wound the other party as much as possible.
The first thing for a legal advisor to explore is what is motivating their own client. If you are Gary's lawyer, that seems fairly simple - he wants the house because he thinks it's key to him becoming a pro-surfer.
But you might decide to explore that issue with him a little more - especially if you are concerned that the size of the estate means that it is unlikely that Gary could keep the house without paying any money into the estate to ensure his siblings are properly provided for. (And it is clear that Gary does not have any money to speak of.) Is the house really the key? Could another property give him that same possibility? Are there better breaks upon which to practice than the ones around Fingal Head? Would those breaks be better to help him cultivate his dreams?
Depending on where that discussion goes, you may also want to (very gently) approach the subject of whether being a pro-surfer is really what he wants. What is it that he hopes to gain from being on the professional surfing circuit? This is probably a very pertinent question because as I am writing this, Australia's borders are closed to almost all international travellers and Australians need permission to leave to travel overseas. Also, a lot of the State borders are still closed or, at the very least, require entrants to quarantine. (Thanks, COVID-19!)
In the current circumstances, if travel to new and interesting places is one of Gary's motivations, he may want to re-think that. Perhaps he's in it for the fame. That might be another avenue you could explore with him.
Please note that I am not suggesting that a lawyer give advice on whether Gary could or should become a pro-surfer. I'm simply suggesting that it can be helpful, both to his lawyer and to Gary, to dig into his motivations. It may be that these discussions uncover a deeper motivation, one not even acknowledged by Gary, that could be key to approaching the negotiation with Harry. Perhaps it could be the key to Gary deciding that there is another outcome that would suit him, one that did not involve keeping the Fingal Head property.
Once you are comfortable that you have an idea of Gary's motivations, the next thing to consider is what might be motivating Harry.
If you are familiar with any negotiation theory, you know that what I am talking about are Gary's and Harry's interests - not their positions. By focusing on the interests of the people involved, you take the focus off their positions.
Yes, I hear you say, but what if the other side aren't interested in looking at interests but keep pushing their position? I'll deal with that in the next blog!