England

England is cited as a setting where divorce law and lawyers’ professional rules require each member of a couple to have a separate lawyer, illustrating how institutional rules can turn a dispute that might be handled cooperatively into an adversarial process. The example also distinguishes the couple’s zero-sum position from the lawyers’ shared financial benefit.

Legal Setting and Representation

At least in England, the rules described in the book prevent a couple from jointly consulting one lawyer for their divorce. More precisely, the restriction is attributed to the legal profession’s own code: a lawyer may accept only one member of the couple as a client. The other spouse is turned away and must either go without legal advice or find a different lawyer.

From Cooperation to Adversarial Conflict

Separate representation supplies the structure for an adversarial case, even if the couple themselves do not feel hostile and have agreed that they want an amicable separation. The lawyers begin speaking in terms of “us” and “them,” with the division no longer simply between spouses but between each spouse and their lawyer on one side and the other pair on the other. The case is formally framed as one party versus the other, making conflict appear built into the proceedings.

Costs and Institutional Incentives

The resulting arrangement is described as a zero-sum game for the couple, whose finances pay for two professionals. For the lawyers, by contrast, the case can become a nonzero-sum game: they may exchange proposals they both know will be rejected, prompting further counterproposals, letters, and telephone calls. Each exchange increases the bill, and the process can continue for months or years. Their professional separation does not prevent this parallel cooperation; in the account, it is precisely the mechanism through which they can cooperate at their clients’ expense, without any need for conscious coordination.

Proposed Reform and Counterexamples

The author contrasts a “Shakespeare option” with the cleaner possibility of changing the law, and observes that legislators drawn from the legal profession may be difficult to persuade because of their adversarial outlook. The British House of Commons is offered as an especially adversarial setting, while courtroom conventions preserve the outward courtesies of debate even as lawyers continue to benefit financially from the arrangement. The proposed remedy is to teach game theory to legislators and contrite lawyers. The account also qualifies its criticism: some lawyers instead persuade clients eager for a zero-sum fight to seek a mutually beneficial settlement out of court.