Avoid the “Prisoner’s Dilemma” in your separation

James Samaroden | January 18, 2024

The Prisoner’s Dilemma is a simple yet powerful thought experiment. Imagine two people, let’s call them Alice and Bob, who are accused of committing a crime together. They are arrested and placed in separate cells with no way to communicate. The police don’t have enough evidence to convict them of the main crime, but they can still charge them with a lesser offense. They each face a choice: cooperate with the other by staying silent or betray the other by squealing.

Here are the possible outcomes:

• If both Alice and Bob stay silent (cooperate), they each get a moderate sentence for the lesser crime because there’s not enough evidence for the main one. Let’s say they each get 1 year in prison.
• If one stays silent while the other confesses, the one who confesses is set free while the one who stayed silent gets 3 years in prison.
• If both betray each other, then they each get 2 years in prison.

The dilemma is that no matter what the other prisoner does, each is better confessing than remaining silent. However, if both betray, they both end up worse off than if they had both cooperated. The key takeaway is that sometimes, cooperation is the rational choice for mutual benefit, even though self-interest might tempt individuals to betray each other. The Prisoner’s Dilemma was developed in the 1950s in the branch of mathematics that studies decision-making in strategic situations, called game theory. Its application famously extends well beyond criminal situations. It’s used to understand and analyze various scenarios in economics, business, politics, war, and even biology, where individuals or entities must make decisions without knowing the other party’s choice. Yes, it even applies to family law.

Are you worried that in your separation you might be betrayed by the other? What can you do?

Let’s consider Alice and Bob who are going through a divorce. If Alice and Bob choose to cooperate, they can save time, legal fees, and reduce stress by working together to reach a fair agreement on issues such as property division, parenting, and support.

However, how can Alice trust Bob to cooperate, and how can Bob trust Alice? They both know that if the other is trying to cooperate, they could betray them and strategize with a lawyer to secure a much more favourable outcome.

And yet, if both Alice and Bob betray each other they could end up engaging in an adversarial legal battle with worse overall outcomes. The process might become lengthy, expensive, emotionally draining, and the final decisions may not align with their individual interests or the best interests of their family.

This is where the Collaborative Family Law Process comes in. Collaborative Family Law is designed to ensure cooperation and open communication between separating parties. In this process, both Alice and Bob, along with their respective lawyers, commit to resolving the issues through negotiation and problem-solving, rather than adversarial tactics. The process is backstopped by lawyers and a Participation Agreement, so the parties do not have to blindly trust the other to cooperate.

The key features of the Collaborative Family Law Process include:

• Open Communication: Both parties and their lawyers agree to transparent and open communication. This helps in understanding each other’s concerns and priorities.
• Problem-Solving Approach: Instead of trying to “win” against each other, the focus is on finding solutions that work for both parties. This often involves creative problem-solving and compromise.
• Neutral Experts: If needed, neutral experts such as financial planners or child psychologists can be brought in to provide unbiased advice, helping both parties make informed decisions.
• Commitment to Settlement: An essential aspect is that if the collaborative process breaks down and the case goes to court, the lawyers involved must withdraw from the case. This creates a strong incentive for everyone to work towards a settlement and ensures that neither of them can betray the process.

If you are separating, you are stuck in a prisoner’s dilemma. If you understand the prisoner’s dilemma, you know that the prisoners cannot talk to each other and are worried about what the other will tell the police. Similarly, in litigation, you rarely talk to the other side and are constantly worried about what they will do and say to their lawyer and the court.

The Collaborative Family Law Process breaks you out of the dilemma by bringing both parties into a different kind of process. It is a process where you and your lawyers sign a Participation Agreement and commit to not just cooperation, but collaboration. Ask your CFL lawyer about the Participation Agreement and how it protects you.

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