Negotiation: To Agree, Or Not To Agree? That is the Question
We want to separate. Where do we go from here?
Many couples who separate can agree on what they wish to happen in relation to a distribution of their assets and, if there are children, the arrangements which they wish to make and put in place for the children’s future.
When couples are in agreement, the options for formalising the property settlement and arrangements for the children are:
- Consent orders. Agreed Orders that can be made by the Court;
- Parenting plan setting out agreed terms of child care;
- financial agreement. Again setting out terms agreed by the parties.
Negotiating an agreement.
Around the kitchen table.
In your negotiations with your partner in regard to property issues and children, it would be beneficial to seek legal advice from a solicitor who specialises in Family Law so that you are empowered and have knowledge of what is achievable in reaching a settlement. Once you are empowered with this knowledge, are you able to sit around the kitchen table and negotiate directly with your partner to resolve such issues.
If you can resolve such matters, then the agreement can be formalised in a manner which I have mentioned. Your legal adviser can assist you in drafting the necessary documents to formalise any agreement reached.
Do you require assistance to negotiate these matters with your partner? If you have a fairly good relationship with your partner, then the most effective means of assisting you in such negotiations is a new form of family law practice, which is Collaborative Practice or Collaborative Law. For Collaborative Practice to be successful, the solicitors engaged must be trained in this form of dispute resolution, a different mindset to the normal practice of Family Law. The collaborative lawyers are trained to work together with both you and your partner to reach an amicable settlement that you can both live with and which best suits your needs.
Collaborative Practice is a popular dispute resolution method developed in the United States in the early 1990s. It gained rapid popularity in the United States, the United Kingdom, Europe and Canada and is now a practice available to help people in Australia.
Benefits of collaborative practice.
- You have the benefit of being advised and supported by a lawyer at all times.
- The outcomes are generally faster than traditional negotiation methods and most certainly quicker than Court outcomes.
- The outcomes are certain and long-lasting because they are owned by you and your partner, as you assisted in creating the outcomes.
- The process promotes cooperation in the future, particularly when long-term investments are involved, and when in most cases you would have a close association in the children’s lives.
- Negotiations are reached in a dignified and respectful way.
- The outcomes are often tailor-made and more creative providing fairer settlements.
Collaborative practice may be suitable for you and your partner if both of you:
- wish to spare your children from the emotional damage that litigation can cause;
- accept personal responsibility moving forward to reach an agreement;
- believe it is important to create healthier and more holistic solutions for your futures; and
- understand and embrace the necessity to make a full and frank disclosure about financial issues.
Even when there has been family violence in your relationship, a collaborative practice approach may still be available. Your collaborative lawyer will assist you to determine whether this practice is available in such circumstances and if it could still be effective. Collaborative Practice allows other collaborative trained professionals such as psychologists and financial advisers (accountants) to be involved in the process. Financial advisers can be engaged where financial assistance is required, not only to assess the assets and their values, especially when there are companies and trusts, but also to advise if any of the resolutions reached are a viable resolution financially, and if resolutions would be more tax effective and more suitable.
The collaborative approach would enable you and your partner to resolve issues respectfully so that you can arrive at dignified solutions to your dispute with your partner and maintain a sound relationship with each other in the future, especially if long-term financial interests are involved and also to assist in your future involvement with your children. The practice emphasises reaching agreement rather than having to battle it out in Court. You and your partner and your lawyers will work together to share information in a series of meetings. They will be involved in the full process and none of decisions will take place outside your full knowledge.
Collaborative practice is different from going to Court. It involves meetings between yourself, your partner and involving your lawyers. Everyone works together towards a common goal resolving the dispute with emphasis on retaining your dignity and best interests.
You will have your collaborative lawyer advising and assisting you throughout your negotiations. The playing field will be more even between you and your partner because you and your partner will have your respective lawyers to support you as well as other professionals if necessary and with your consent.
If an agreement is reached in these collaborative meetings, then the agreement can be formalised in the manner I have described above.
What if collaborative practice is not suitable to you? Are there other means available?
Mediation is another form of alternative dispute negotiation which may be suitable for you. Again, it is a voluntary process. However, the Family Court may order mediation if you do instigate proceedings in the Court.
Normally, in mediation, you are represented by your own lawyers. The difficulty with mediation is that you will have one version of the dispute and your partner may have a different version to your own. The Mediator is only there to assist with you in negotiation. The difficulty is in bringing together the two opposing views given to your respective lawyers. The mediator’s role is to assist with communication between yourself and your partner so that you may have open discussions in negotiating a settlement.
The mediator’s aim is to facilitate the open discussions and communications between you and your partner so that you can identify the issues of the dispute, generate options to address such issues, and hopefully to agree upon ways to resolve the issues and to reach a settlement.
The mediator’s role is essentially a neutral one. The mediator will not take sides. The mediator will work with both you and your partner to help you negotiate your own decisions together and will not represent either of you in Court before or after mediation.
Both Collaborative Practice and mediation can be dealt with quickly, and because of this, the costs are limited. If these forms of alternative dispute resolution are not successful or are unavailable or cannot be agreed upon, then the only solution is litigation in the Family Court.
Most matters in the Family Court are dealt with in the Federal Circuit Court. This is part of the Family Court in Australia. The more difficult issues are dealt with by judges in the Family Court.
Proceedings in the Family Court should be avoided if at all possible. It is emotionally and financially draining being involved in such a process. It can take years for a matter to resolve in the Courts.
The Court can order reports which would involve the children also being interviewed by a report writer. If all else fails, this is the final process to help you to resolve the issues arising from a separation. If you are embarking on this process, it is very important that you seek legal advice.
Financial support until financial issues and children’s issues are resolved. This would occur where a party has not had the financial control of the resources of the relationship, has not been in employment, and who has mainly been involved in the parenting and household roles and may not have the financial means to support himself or herself if a separation should occur.