Is an amicable divorce possible?
Family lawyers required to resolve issues constructively may have something to teach politicians in their Brexit negotiations, writes Simon Bruce
‘Surely this divorce '¨can be amicable,’ I said optimistically at a recent meeting devoted to the subject of Brexit and what happens next.
I was influenced by Resolution’s recent code of practice requiring family lawyers to ‘resolve issues in a constructive way’, and to ensure this principle ‘is at the heart of everything that we do’.
So I thought it might be interesting to look at some of the Brexit divorce issues highlighted by the chattering and non-chattering Euro classes, alongside the precepts of family lawyers who are meant to resolve issues constructively and amicably.
The UK joined the common market, and didn’t like the structures around it. But although the UK is going to leave the common market it '¨still wants the security those structures afford.
Clients are complicated and often irrational. They’re not robots. They have the luxury '¨of changing their minds, and '¨to carry out actions which go in different directions. Family lawyers must ‘listen to and '¨treat everyone with respect '¨and without judgement’. Our job is to filter out the quirky aspects of our clients’ characters and desires, and move them towards the common ground '¨of an agreement.
Negotiations between friends
On 31 January 2017 it was reported that the European Parliament’s top negotiator said Britain could face a £500bn Brexit divorce bill. But only a week later the EU apparently agreed it would require the UK '¨to pay only £48bn towards its commitments up until 2020.
Our ideals as family lawyers are to ‘reduce or manage any conflict and confrontation; '¨for example, by not using inflammatory language’. '¨Ideally, our clients will remain friends after the divorce. Avoid inflammatory language, on all sides. Don’t exaggerate. If you are going to negotiate about the figures, remain in reality rather than la la land.
The Trump effect
Britain decided to leave the EU, and to cosy up to new friends, including the United States. But now the US has elected Donald Trump as president.
In short, be careful what '¨you wish for. Select your new friends carefully. According to our code, we must ‘help clients understand and manage the potential long-term financial and emotional consequences '¨of decisions’. Don’t jump from the frying pan into the fire. Be measured, not extreme.'¨'¨Phoney war?
‘We are in a state of phoney '¨war. We haven’t received Britain’s demands yet,’ some '¨say. Still, best to avoid using inflammatory terms. We’re not actually in a war. These are meant to be peace talks.
Money versus access
‘Britain is trading money against access,’ say others. One of the possible outcomes of the divorce negotiations is that Britain will have access to EU markets, as long as it makes an appropriate payment for the privilege.
This reminds me of the family code that one should never mix the money aspects of a break-up with the care of and access to children. Keep the subjects separate. Never talk about both things in the same letter. Our new code tells us to ‘support and encourage families to put the best interests of any children first’.
‘This is an asymmetric negotiation. Britain on one '¨side and 27 countries on the other,’ I hear you cry. Well, '¨family lawyers are very used to representing someone who is separating from a richer and more powerful partner. In the words of our new code, we ‘use our experience and knowledge to guide our clients through the options open to them’.
It’s obviously in the interests '¨of divorcing partners to find '¨a solution that is of mutual advantage. A resounding battering of the weaker party '¨is not necessarily the smart '¨thing to do. If you want a deal, don’t alienate the party you’re negotiating with.
‘The British always have their '¨way, but there will need to be compromises.’ Only a lunatic goes into a negotiation thinking they will get everything they want. Leave room for compromise. Be careful before adopting your final position. Leave yourself some wiggle-room. Inflexible people tend to finish second.
‘In the UK you talk about Brexit all the time. We don’t do that '¨in the EU. We have loads of '¨other things on the agenda – including border control, security, and immigration.’
Partners develop different agendas and priorities over time. But it comes back to trying to find common ground, the things that united separating partners. So, identify common interests and ground the solutions in those.
‘What about Nexit or Frexit?’ Family lawyers are meant '¨to ‘continually develop '¨our knowledge and skills’. '¨Our negotiations in one '¨case continually help our negotiations in others. We '¨learn from our mistakes. The '¨way the Brexit negotiations '¨will be dealt with will influence how similar negotiations will take place in the future.
The way we approach negotiations, and the sincerity '¨of the search for an amicable divorce, will have profound repercussions in history. Family lawyers may have something to teach the politicians.
Simon Bruce is a partner at Farrer & Co