The Value of Pessimism in Family Law Negotiations

Breaking news: maintaining a bit of pessimism in family law negotiations just might serve you well.

Does this sound counterintuitive? Shouldn’t we remain optimistic about our ability to make it through such a difficult period in our lives? Well, according to Mitchell Rose, a Toronto-based mediator and settlement counsel, cultivating “mild pessimism” might actually make it easier for you to do just that.

In his recent article, “Learned Pessimism: A Healthful Dose Helps at Mediation,” Rose uses the work of psychologist Martin Seligman to illustrate how being overly optimistic might actually harm the negotiation process, whether it’s taking place in mediation or being handled by lawyers.

How could this be the case? Rose explains that Seligman’s definition of an optimist is someone who tends to view crisis or calamity as “not their fault,” and as a state that “won’t last long.” Though this outlook generally helps such a person to be resilient in the face of problems, it could have a negative effect on legal negotiations. This is because the client who adopts such a viewpoint might “assume that the other side is necessarily at fault” and “must lose,” since he or she optimistically views their own position as the correct one. Not only is this unlikely to be true,  but it may also be counter-productive in authentic mediation or collaborative law negotiations because, when considered honestly, most problems stemming from separation are complex and cannot be accounted for or solved simply.

Rose points to Seligman’s definition of a “mild pessimist” as describing a better attitude for us to adopt if we want to make our negotiations more productive and successful. The mild pessimist is “prudent and measured” and does not automatically assign blame either to himself (as a true pessimist might), or to the other side (as would an optimist).  A mild pessimist makes an effort to recognize the complex and uncertain reality of the situation, and base decisions on this more complete perspective. Such a person is more likely to consider compromise and collaboration, and try to maintain control over the outcome of the dispute to avoid an unwelcome decision by a third party decision-maker like a judge. Mild pessimism in family law negotiations, therefore, can be a good thing.

Rose writes that he “prescribe[s] a healthful dose of pessimism, where and when appropriate, to counterbalance dangerously overly-optimistic thinking that can so easily overtake people in conflict and the lawyers who help them.”

Taking the role of a mild pessimist when engaging in negotiations may help you recognize the benefits that come with taking a pragmatic approach to conflict resolution, and committing to work with your negotiation partner to find a way forward to settlement.

Read Mitchell Rose’s thoughts on pessimism in mediation here.

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