When it comes to financial agreements and divorce, there are a variety of processes in our tool kit that we can implement as family lawyers. The process that is recommended for you often will depend on the issues to be resolved and how pressing these are, the time frame you have been separated and the level of goodwill and communication between you.
As such, the process can range from more informal or require a more structured or formal process. This might come down to the instinct you (and possibly, your former partner) have as to whether there are likely to be sticking points following you getting some initial advice or if, as a result of that advice and information, you want to go away and have a direct discussion with each other to try to reach an early agreement.
There are a number of aspects of financial arrangements that need to be addressed following a separation. These range from the short term or immediate financial arrangements to the longer-term financial settlement, including how you are going to address child support and other expenses and ultimately how you divide up your properties as part of a settlement.
In this article we explore a range of processes to assist whether you are currently focused on short-term decisions or the bigger picture of your final property settlement by negotiation including:
- Direct Negotiations
- A “Round table” or 4-way Conference
Some people will choose to try direct negotiation as an initial approach. This is where both parties meet on an informal basis to see if they can reach some agreement about particular items or key things. Direct negotiations are generally done in the very early stages of the settlement process and after you have had some initial advice from a lawyer to assist to be informed about your options before you make any proposals.
Direct negotiations are used when people are relatively amicable, and work best when there is not any major concern or urgency about the short-term financial agreements or preservation of assets.
These negotiations are useful when the parties are wanting to work out a ‘holding pattern’ about their short-term financial arrangements so that lawyers don’t necessarily need to assist them with day-to-day type of arrangements. This then leaves us as family lawyers to instead focus on the bigger picture or long-term settlement.
In these circumstances, the parties speak directly together without any lawyers’ present. Following the direct negotiation, the parties then come back to their lawyers to obtain advice along the way or to formalise agreements if they do reach an agreement.
For some people this process will not be possible due to the complexity of the relationship dynamic and they will need more assistance in the very early stages.
Round Table or 4–Way Conference
Another process that may be utilised is a round table or a four-way conference with both parties and their lawyers. These conferences work well where there is a good dynamic between the lawyers involved and where the parties feel comfortable enough to approach discussions in this way. It gives the parties the opportunity to amicably come together and get a clear understanding of how far apart they are when it comes to their wants from a property settlement.
Having a 4-way conference can help to “cut to the chase” if issues are relatively narrow and speed up the process of resolving the outstanding issues. This is because all involved can prepare for the conference on a particular date rather than sending letters back and forth. The benefit is that everyone is there on the day to focus their mind on it.
A 4-way conference also gives you an opportunity to explore different options and talk through these options on a ‘without prejudice’ basis. That is, any discussions at this conference cannot be referred to in the event that you cannot reach agreement and your matter goes to a Court context.
This is more informal than a mediation because there is no independent mediator engaged.
If both parties’ desired outcomes are far apart based on the offers that have been exchanged during negotiations the next best step is to start looking at the mediation process. Mediations can occur prior to a court process by agreement but also regularly occur after court proceedings have been commenced by one party.
Mediations are probably the most common form of dispute resolution that we assist people with, and we have a high success rate resolving financial issues through this process. This type of process allows you time to properly prepare and engage with the process to ensure that the parties involved are best placed to make an informed decision on the day.
Your mediation can be with an independent mediator and can be with or without a family lawyer. Typically, it works better where both people have the benefit of the legal advice, prior to and during that process. Having that advice helps them to feel more comfortable and better informed to be able to make decisions that are wise for them in the short and longer term. A lawyer-assisted mediation is especially helpful because as things come up during the mediation, parties are able to get advice from their lawyers who are there to provide it on hand.
Mediations are also a great form of dispute resolution because of the preparation that goes into it. As family lawyers we prepare our clients to have a good idea of what the mediation might look like, what their best and worst-case scenarios might be and make sure all of the necessary information is on the table so you can make well-informed decisions. We provide our clients with a risk analysis beforehand which assists them to consider the likely range of outcomes and the best and worst case scenarios so they can have reference to this when considering any proposal which might be made.
This is important because often we find if people haven’t been assisted or they have not been assisted well and end up at a mediation where some information is missing then it can be an impediment to getting an agreement. If this happens the mediation will have to be deferred or paused so that you, or your former partner, can go away and come back with information or a decision, at a later date.
Having a family lawyer with you at mediation will give you the best shot of actually trying to resolve the dispute without heading to Court. This is because there is a level of preparation, both of the information you need, but also preparing you for making a decision about how to finalise things.
We see that often people are not ready to make a decision right at the beginning, but through the process of preparing for the mediation, they see that there are advantages to trying to find a solution.
An alternative dispute resolution process is the collaborative process. This is one where people agree that they are not going to go to Court. Instead, they enter into a more formal process with lawyers who are collaboratively trained to find a collective solution to their problem.
Collaboration is a more structured process where there are a number of meetings between all people involved and potentially other experts such as valuers or communications experts to find a mediated solution to a problem, but without a mediator being involved.
To be successful in this process there needs to be a high level of cooperation, goodwill and desire to do it. It is not suitable for all.
Whatever process you go through to arrive at agreement, you must ensure you formalise it. To formalise your agreement, you will be assisted by engaging a family lawyer to ensure this is formalised properly so you have finality, the terms of your agreement can be enforced and your interests are protected. Your lawyer will be able to advise you throughout the process and assist you in getting an outcome that is fair to you.
Phillips Family Law is an award-winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision-making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here.