I’ve been blessed with some lovely cooperative and charming opponents recently. And few who have been grouchy, rude and irrational. I’m a firm believer that being that person doesn’t pay off: it isn’t an effective strategy that assists clients. It signals a loss of objectivity or a lack of confidence, it shuts down the opportunities to reach compromise, it provokes retaliatory responses and escalation and it irritates judges.

I don’t pretend I am the perfect opponent. We can all have our off days. But I try not to be that person. And over 20 years of testing, I’m confident that this approach is best for my clients as well as being best for my wellbeing. I feel sorry for the opponents I occasionally encounter who are habitually unpleasant or difficult, and who don’t do dialogue. This job is stressful enough without expending additional energy projecting some hard (wo)man persona day in day out. It makes me tired just watching it being performed and I have to struggle not to disengage.

That’s not to say I’m a pushover. Sometimes one needs to be firm. And sometimes one needs to say ‘that’s unacceptable’. The corollary of that is when I don’t think I can be polite any more I walk away and take a moment, and when I occasionally snap at someone I apologise.

This morning my son was enthusing about a maths based youtube channel. Maths is not my natural forte and the first video made my head hurt (something to do with circumferences and rotations and pi). But then the algorithm showed me another video from the same channel and now I need all my colleagues and my clients to watch it. It’s about game theory and its fascinating and I love it because it vindicates my entire professional approach.

It’s called ‘What the prisoner’s dilemma reveals about life, the universe and everything’ and you can watch it here:

The Prisoner’s dilemma was an experiment which looked at the success of different strategies to a game, when the players had to decided on each consecutive move whether to cooperate or to defect. If both cooperated they got 5 points each. If both defected they got 1 each. If one defects and the other cooperates the defector gets 5 points, the other nothing. Clearly as each round unfolds players will have to decided how they should respond bearing in mind the history of their opponents moves so far. The experiment was run as a competition which invited people to submit computer programmes which encoded a particular strategy. The game was run and re-run with all the different strategies competing.

I’m sure those of you who studied politics know all about game theory and that I am way behind and simply showcasing the gaps in my education, but this really is fascinating. I like to think that for good family lawyers its conclusions are not surprising, and that they reflect what most of us instinctively know and do. But thinking about the principles that game theory draws out is a useful exercise that should I think give us nice guys greater confidence that our approach is valid.

The programs submitted to the competition were either nice (cooperative) or nasty (defect). Some of them bore grudges – i.e. once there had been a non-cooperative response from the other player they switched to defect mode themselves, and stuck with that. Others would respond to a nasty move by retaliating, but they didn’t hold a grudge. And some were really complex and difficult to predict or understand, or even random.

The nice programs came out on top. Not only that, other principles emerged too. You might not think that the label ‘tit for tat’ is an encouraging model for cooperative behaviour, but the approach labelled ‘tit for tat’ in the prisoner dilemma was based upon was characterised by four things:

• Nice (cooperative)
• Forgiving (not holding grudges)
• Retaliatory (not a pushover when someone is ‘nasty’)
• Clear (consistent / predictable)

And it was this ‘tit for tat’ approach which consistently came out on top. ‘Nasty’ tactics may work in the short term but overall they consistently produce worse results for everyone, including the nasty player. For our clients that means that if the culture of family law is ‘nasty’ everybody loses (think about those cases where parties spend all the money they are arguing over on the argument itself).

I reckon those four points are the recipe for the sort of lawyer you want representing you, and for a perfect opponent. There are some lessons here for both lay and professional clients and for advocates:

We need to constantly bring our lay clients back to the bigger picture – of the financial and emotional costs of the process and of the contribution that their choices make to those costs. We need to find ways of reminding them that attacking the other side does not necessarily produce a ‘win’ for them, though it is tempting to think that.

Particularly thinking about the role of lawyers in conflict resolution, it’s worth noting the conclusion in the linked video that individuals who operate on a ‘tit for tat’ basis in line with these four principles can, over time, change the environment – that is to say nice is catching, because it becomes clear its to everyone’s mutual advantage to work in this way. Resolution’s code of conduct has for many years now sought to promote just the sort of behaviour and environment that is to everyone’s mutual advantage, but we all know of lawyers who don’t adhere to this and who simply channel their client’s instinctive wish to go in hard and to attack at every opportunity. Where we encounter that we need to be consistent in modelling good behaviour and to correct where necessary, but then draw a line and move on.

There are of course points in any litigation or negotiation where it is not possible to agree or concede, and one has to simply say ‘no, I don’t agree’. But that does not undermine the general principle that cooperation where possible is mutually advantageous. I reckon that if it’s a good enough approach to apply to international politics and nuclear conflict, then it’s good enough to apply to the politics of family separation, which can be every bit as complex.

And with that profound YouTube inspired ramble I wish you a good weekend. I now have some actual work to do and I’ve run out of excuses for doing it.