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Game Theory and Family Law: Playing the Right Game

Updated: Jan 14, 2021

I recall a recent negotiation I had. It had been an intractable negotiation that seemed to have no place to go. It involved contact with a child and despite the best efforts of a variety of solicitors on both sides they simply couldn’t come to an arrangement that would last. My client wanted contact at a certain level but was impatient to hit that level and she was still clearly angry at him for having cheated. So they were both trying to win at the expense of the other losing. Wining? Losing? It was clear what the problem was for them and all the solicitors that had gone before: they were playing the wrong game!

No doubt this case is typical to other solicitors and may be your lived experience as you engage in negotiations or litigation for contact, residence etc of your own child/children. So what is the this “Game Theory”?

Essentially we are all engaged at all times in one of two sorts of game: finite and infinite games.

Finite games have winners and losers. The rules of the game are known to both sides, the boundaries of the playing field are well-defined, the scoreboard keeps track of the game’s activity, and at the end of a prescribed period of time, a winner is declared. It’s neat. It’s clean. Someone wins, someone loses. When the test for these cases is that the “paramount consideration of the welfare of the child” how doers that square with the finite game. When you are a parent when is the prescribes period and test when you are declared “the winner”. The easy assumption when you are involved in a binary negotiation or litigation is that success equals someone winning. Now let’s look at the infinite game.

Infinite games have no winners or losers. Rules often don’t exist, and if they do, they are fuzzy and open to interpretation. The playing field is undefined and progress is hard to measure. Opponents change frequently, as does the game itself. There are no clear winners or losers in the infinite game. Competitors drop out of the infinite game when they lose the will or resources to stop playing. The goal is to outlast your competition. Now that sounds much more like family law and parent and child aspects in particular: doesn’t it?

So why are parents seeking contact orders and those defending them playing the wrong game? What lessons can we take from that to ensure that the welfare of the child is actually at the heart of it. Clearly the finite game does little to promote that test. Well part of the problem is that solicitors don’t know how to practice in an infinite game (for the most part. Some do even if they don’t know that’s what they’re doing).

There are a variety of different set ups for game theory that can perhaps demonstrate this issue. When both players are playing an infinite game they know the rules and understand there will be a winner and a loser. The terms are defined and this is understood. The situation is stable. This is what most litigation is about. We have winders and losers: Pursuer and Defender. The rules of the game are known to both sides: law of debt actions and court procedure. At the end of the litigation there is a winner and they get a decree from a judge. The problem is this doesn’t apply to much of family law. Parenting doesn’t end with decree. We are not frozen in time at the date of the decree.

The other scenario is that one player is playing an infinite game and the other a finite game. This is inherently unstable. The finite player is waiting for the end of the game and presumes resource allocation on that basis. Except the Infinite player has correctly identified that this is a long term plan. There may be short term gains and losses but in the end the opponent loses the will or resources to continue. However, this scenario is inherently unsettling and potentially damaging for the children involved. Since the premise of tis is that finite game theory is inappropriate in these case then the attitude by the finite player is inherently counter to the best interests of the child. We see this all the time. However, if a finite game is bad, this scenario is not better but “less bad”. At least one parent is playing the correct game. Perhaps there is scope once the fighting is over for both to play the right game? Unfortunately this is rare. Once the mindset for finite game play is established it is hard (though not impossible) to disrupt. These are the cases that seem to resolve and end up back in Court after 6 months.

So what is the correct scenario? Game theory would suggest that the appropriate scenario is for both parties to play the infinite game. Even the test tells you this. What is welfare? It is malleable, time dependent, scenario driven and flexible. You win the test one day but it doesn’t necessarily apply the same 6 months down the road. So how do you we build infinite game play into our strategies?

1. Just cause—More than your “why” or purpose, a just cause is what motivates you to get out of bed in the morning. It’s the passion or hunger that burns inside that compels you to do what you do. Your just cause is what powers you to outlast your competitors. It propels you forward in the face of adversity and empowers you to persevere when you feel like giving up. In family law, this is about your long term relationship with the child. The just cause is their welfare (not just your optics of it) but genuinely, their welfare. That means that winning and losing plays not part (except where required: there are always finite games within infinite games)

2. Moral Courage—Playing the infinite game requires participants to prioritize the just cause above anything else. (In leadership theory, where this is most commonly applied, they talk of courageous leadership…leaders have the virtue of moral courage. To act against their own self-interest for the just cause)They are willing to stand up to the pressures of the family, expectations, residual antagonism, or popular sentiment, and stay true to their cause. Again… winning is not the motivation. This can be done through the way in which the parties conduct themselves in negotiation or litigation… as well as (if often just as importantly) their solicitors.

3. Self Regulation and Empathy – Not being sucked into a shouting match is one of the most difficult things for a client (and sometimes their solicitor) to avoid when engaging with a finite player. Understanding the game that you are in is incredibly important. Empathy is key to this. Engaging in an finite game when they unknowingly should be playing the infinite, is incredibly stressful. However, empathy is also key to getting the positive result. At Serenity Family Law we conduct ICAPs reviews of all litigations and complex negotiations. This process opens up understanding of the other side and can help draw the other side into playing the correct game. Alternatively, it can also exploit the motivations of the other side by framing offers and process as wins for them. We, however, don’t care about winning.

4. Worthy adversary—In the infinite game, adversaries are acknowledged and treated with respect, but our success or failure isn’t measured against them. Ultimately we are competing against ourselves, and our success or failure should be measured against our just cause. Our adversaries may push us to improve our products, services, marketing, etc., but in the infinite game we are constantly striving to become a better version of ourselves in order to fulfil our just cause. Within the parent and child law context this adversary is two-fold. That of the clients and that of the solicitors. For the client it developing the empathy from above and understanding that despite the antagonistic nature of this litigation there are often good lessons to be learned from the process. For the solicitor it can be the solicitor on the other side or a particular solicitor to whom you compare yourself. In both instances, it is about self-development not about beating that person. By being better and learning you invariably increase your chances of a positive result.

5. Open playbook—Too many solicitors and their clients pursue a variable cause with a fixed strategy; we advise pursuing a fixed cause with a variable strategy. While it is important to remember lessons from previous negotiations and litigations, too often solicitors engage a “one-size-fits-all” approach. The key to playing the infinite game successfully, is to have flexibility of thought, strategy and tactics. Always starting with Selection and Maintenance of aim is key. Utilising everything as an option so long as it will achieve the goal is key within the infinite game. Worse than a generic strategy is a strategy with no goal in mind. We will always start with the goal. Keeping in mind the goal is not necessarily to “win”.

You can win every battle but still lose the war. The goal is not to beat your competition; the goal is to outlast them. What does that mean in Parent and Child Law? It means a result that is stable. It means lines of communication are kept insofar as that is permissible. It means that we are looking beyond the case, beyond the negotiation, to your relationship with your children and how that will best benefit their welfare.

So what happened in the case at the start of this article? I shifted my client into the thought process of the infinite game. That in itself took some of the “heat” out of negotiations. The next thing was to either bring the other side into the right game or exploit their need to win. In the end we were able to do both. We framed an offer as a win. Even the tone of the letters were designed to give that impression. It mattered little to our client or me: it mattered a lot to the other side. With a win under their belt the other side moved into the correct mindset and very quickly, a negotiation that had been going nowhere, settled. Both sides were happy.

If you want to play the right game then make a free initial appointment to discuss your case.

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