The unreasonably reasonable negotiator



Zoe Earl
LLB (QUT); GradDipLegPrac (QUT); BA (Griffith); GCSocSc (QUT)

No matter your style and whether you are able to resolve out of court or not, a good negotiator will be unreasonably reasonable in their dealings with their opponent and in their conduct at the negotiation table. This applies to parties and practitioners alike.

So what does it mean to be unreasonably reasonable?

Sometimes it means rising above the conflict. Sometimes it means letting go of the inessential. Sometimes it means compromising one more time for the sake of an immediate resolution. Sometimes it means putting someone else first. Sometimes it means holding your tongue and sometimes it means walking away. However, most of the time it means letting go of your desire for vindication, for gratification, for retaliation, for compensation or for retribution. Being unreasonably reasonable takes many forms, but it is a key element in effective, long-term dispute resolution.

Failing to be unreasonably reasonable does not mean that your dispute cannot or will not resolve. It does, however hinder your acquisition of tools, resources and information that will help you resolve future conflicts and results in a failure to minimise the severity and frequency of future conflict. This is particularly so in the context of family law and more particularly parenting disputes. It is important to remember that the spousal relationship may have ended, but the parenting relationship must survive for years to come.

Aside: As practitioners, it is also important to remember that we may be opponents today but we will still be colleagues tomorrow - both striving to do our best for our clients.

In the family law context, adopting an unreasonably reasonable approach to your negotiation means being able to walk away from the negotiation table with your head held high, knowing that you can be proud of the way you conducted yourself. In parenting-related disputes it means knowing that your conduct has been something your children would be proud of and knowing that you did everything you could to preserve a positive parenting relationship between you and your former spouse.

Why won’t reasonableness suffice?

Often, by the time I have become involved in the dispute, emotions are high and the parties have been attempting to resolve their own conflict unsuccessfully for quite some time. Usually the parties have said and done things they never thought were within them. Yet here we are.

The word reasonable also means rational, logical, fair, well-reasoned and valid. Often the desire for vindication, compensation or retribution is entirely reasonable in the circumstances. The emotions are valid and the outcomes desired are often also logical, well-reasoned and sometimes “fair” in all the circumstances. However, the goal of dispute resolution methods such as negotiation or mediation should not be immediate gratification, but long term conflict minimisation.

Regardless of the logic behind your desire to punish your spouse or have your position vindicated, the pursuit of such things will not assist in achieving a negotiated outcome that serves you in the long term.

To do something unreasonably means to do it disproportionately, ill-advisedly, ill-logically or inconsiderately.

Adopting a calm and reasonable approach might be a disproportionate reaction to your opponent’s conduct. The reasonable approach recommended may be ill-advised by your friends or social media groups. A reasonable negotiated outcome may be contrary to the advice you have received about your ultimate entitlements should the matter proceed to court. A reasonable outcome that does not compensate you to the fullest extent possible may be illogical to those who cannot see far enough into your future and it may be inconsiderate of your own desires for retribution, vindication or retaliation.

To walk away from the negotiation table having been reasonable where to some it may seem unreasonable to do so is something to be proud of and something that will serve you well no matter where you are in the resolution process.

Zoe Earl (Barrister-at-Law)
4 March 2019