Let’s say you’re in the middle of the separation process (you’ve separated and now you need to work out how you will divide your assets and parenting arrangements). You’re probably wondering how to start negotiating things and what your options are for actually bringing things to a close.

In this article, we’ll run through the 6 most common avenues that separating parties pursue to work through the finer details of their separation to reach agreement.

Kitchen Table Discussions

Of this list, kitchen table discussions are the least formal. And, of course, it doesn’t have to be a kitchen table…

Here, you and your partner get together, without lawyers, and work through the details of your separation. That might include discussing property and money, debt and obligations, parenting arrangements and any other matters that need to be resolved before you can move on.

It can be useful to prepare some discussion points in advance, such as a list of significant assets or property or talking points that are important to you.

Of course, these types of informal discussions are only feasible when both partners are mostly amicable and interested in working together to reach a resolution.

This doesn’t mean you won’t have lawyers assisting in the background. Even if you do largely finalise your separation discussions between yourselves over the kitchen table, your lawyers should still assist in documenting things appropriately in a consent order or binding agreement so that your financial relationship comes to a legal end.

Mediation

Mediation is a discussion that is facilitated by a third party (called the mediator) who is trained in mediation.

The mediator’s role is not to direct the parties about what they should do or make decisions, but rather to guide the discussion towards a resolution of the outstanding issues. They will help the parties find common ground and points of agreement, and work on more complicated issues using a variety of strategies.

If you do reach an agreement during mediation, usually the terms of that agreement will be documented on the spot in Heads of Agreement. Then the Heads of Agreement can be provided to your lawyer so that they can be formalised into a binding agreement such as consent orders.

Mediation is often very successful in assisting parties reach agreement and is usually really cost effective. We recommend that most clients attempt mediation and have great contacts with mediators so we can point you in the right direction.

Collaborative Negotiations

Collaborative family law practices are relatively new in Australia and serve a unique role in separation.

The idea is that the parties agree to undertake a process, over time, involving discussions and third party consultants such as financial planners and child psychologists. In practice this usually involves meetings of about 2 hours in length where all parties come together to discuss settlement, typically there are about 2 to 4 meetings over the course of a couple of months.

In collaborative negotiations, you (our client) retain a large amount of control over the process.

An important aspect of the collaborative process is that the parties agree that they will not issue court proceedings with their collaborative lawyer acting for them if the process breaks down and agreement cannot be reached. This keeps both lawyers and parties focused on reaching a mutually acceptable outcome.
Many clients find negotiations conducted in this way to be ultimately less stressful and painful than a more combative litigation process or the more formal negotiation styles.

Negotiations Through Lawyers

Often paired with other options, lawyers regularly conduct negotiations on behalf of their clients.

That might be on individual issues as they arise, process disputes about what should happen when, or to finalise all matters between the parties.

To ensure clarity, often negotiations are done by correspondence. Though, in the right circumstances, lawyers can work with their counterparts over the phone or in person to achieve good outcomes for their clients.

The challenge of these negotiations is avoiding a never-ending paper war, with lawyers merely writing long letters back and forth without any real progress being made.
That said, lawyers have a lot of experience negotiating and having them engage in the process can help keep you removed from the confrontational elements that other options have.

Arbitration

Arbitration is very similar to litigation, the main difference being that it sits slightly to one side of the formal Court process.

In arbitration, you appoint an independent person (the arbitrator – often, but not always, a lawyer) to conduct a decision-making process. Much like Court, they will often hear evidence from the parties and submissions by lawyers, and make decisions in similar ways to Judges.

The main difference from mediation is that the arbitrator WILL, in fact, make a decision and you will be bound to accept it. There is also generally no appeal from an arbitration.

Currently arbitration in family law only occurs in property matters, but it offers an excellent alternative to court proceedings where parties need a decision to be made because they can reach agreement between themselves.

Litigation

Litigation is what most people immediately think of when they wonder about how to conclude separation.

Litigation involves a long process where each party and their lawyers flesh out all of the possible issues, agree on those issues that can be agreed upon, and take the balance to the Court to decide.

The Court will hear evidence from the parties and other relevant witnesses, submissions from the lawyers about the legal impact of that evidence and then make a decision accordingly.

Because of the time, cost and stress inherent in the litigation process, it’s typically not the recommended path, or at least should occur whether other resolutions paths mentioned above have been explored first.

However, in some cases (say, for example, where one party is being manifestly unreasonable) litigation might be the only option to reach an outcome.

Which Option is Right for You?

There is no one size fits all method, and each circumstance probably needs a different approach.

Importantly, most of these options aren’t mutually exclusive.

You might find, for example, that a party who initially isn’t prepared to negotiate at all might be more inclined to attend a mediation some months into the litigation process.

Or you might find that negotiations between lawyers get most matters resolved, but that a face to face discussion with your ex is needed to finalise the last remaining points.

The best thing you can do is be open and honest with your lawyer about where you want to head and how you want to get there, and let them advise you from their experience on the path most likely to succeed.

Accessible Family Law can assist with all of the above negotiation paths, and we regularly guide clients as they move through their separation.