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  • Inside Track
    December 02, 2015

    On Family Law: Game Theory and Divorce Settlement Agreements

    Gregg M. Herman

    king and queen torn playing cardsDec. 2, 2015 – While most lawsuits settle before trial, in family law, due to the ongoing relationship of the parties and the high degree of latitude (otherwise known as discretion) afforded to trial courts, settlement is of extra importance.

    Yet it is not just getting the case resolved that is important – how the case is resolved can affect the ongoing relationship of the parties. While there is a substantial amount of research and literature regarding negotiations, it seems that most continuing legal education (CLE) courses in family law are dedicated towards how to litigate a matter.

    However, a recent addition to the literature adds valuable information to assist lawyers in understanding the dynamics behind negotiations. My unscientific estimate is that 90 percent (or more) of divorce cases are resolved without a trial. Yet, it seems that 90 percent of CLE courses teach litigation skills, be it courses on evidentiary, discovery or other litigation issues.

    So, roughly speaking, 90 percent of CLE teaches what we do 10 percent of the time and vice versa. I’m guessing the reason is that lawyers think trial skills have to be learned while negotiation skills are intuitive: One party starts high and negotiates lower and the other side does the opposite. These lawyers could not be more wrong.

    Gregg HermanGregg Herman is a family law attorney with Loeb & Herman S.C. His primary office is in Milwaukee. Gregg is the co-editor of the System Book for Family Law, published by the State Bar of Wisconsin PINNACLE® and author of Settlement Negotiation Techniques in Family Law, published by the ABA Family Law Section. Herman is a former chair of the State Bar and American Bar Association family law sections. Follow Gregg’s opinions on his family law blog.

    First, unlike other areas of law, the litigants in most family law cases continue contact with each other for years to come. Unless they never have children, they will be involved in activities, graduations, marriages, grandchildren and more for the rest of their lives. As a result, my mentor and late partner Leonard Loeb used to say: “The goal of a divorce lawyer should be get the best financial results for the client without creating or adding to the degree of animosity which would prevent them from walking down the aisle together at their childrens’ weddings.” [Note: Earlier in his career, Leonard used to say “dancing together at their childrens’ weddings.” Later, he said that dancing together was too much to ask – it was enough if they could just walk down the aisle together].

    The concept of getting good financial results and avoiding additional acrimony are actually in sync with each other. For example, in the typical case, the more money which the payer earns, the more money is available to pay to the payee. In short, divorce does not have to be a zero sum game.

    Did I say “game?” Well, one field of research involving settlement negotiations involves the area of game theory. Game theory is a field of behavioral economics that uses game scenarios to understand human dynamics as they apply to negotiations and other areas. In the past, I’ve written about a couple of areas of game theory and its application to divorce law.1 However, my articles are like a kindergarten lesson compared with a new book written by attorney Allan Koritzinsky and psychologist Kenneth Waldron, entitled “Game Theory and the Transformation of Family Law,” published by Unhooked Books and available on Amazon and elsewhere.

    Their book discusses the concept of game theory in general and its application to family law far more articulately and scholarly than my meager efforts. It is a great book and an important addition to this field.

    Yes, negotiations can be as simple as starting high (or low) and compromising in between. But diagnosing diseases can be done sometimes by having a patient stick out his or her tongue. Fortunately, doctors make use of all available diagnostic tools. Family law practitioners owe a debt of gratitude to Allan and Ken for making this available to anyone who wishes to improve services to his or her clients.


    1 See The Ultimatum Game and Divorce Settlement Negotiations, 27 A.J.F.L. 2 (Summer, 2013); Are Divorce Settlements Like Games, 18 A.J.F.L. 1 (Spring, 2004).

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