Negotiating an Agreement - A How to Guide

So you’ve just separated from your partner. “What next?” you might ask yourself.

Whether your situation is amicable or not, there are options. We think the first step is to understand what the issues are (or are going to be). An issue will exist when you and your former partner are unable to answer a question or reach an agreement about something, for example:

1.?????What is the value of our house?

2.?????Do we need to sort out our parenting arrangements?

3.?????How will my inheritance be treated?

4.?????Who gets to keep the house?

5.?????Who spends Christmas with the kids this year?

Once these issues are known, you can negotiate to work through them.

What are the different styles of negotiation?

There are two primary ways to approach a negotiation:

1.?????Rights based

2.?????Interest based

Rights based negotiation requires an understanding of what you are each entitled to under the Family Law Act 1975 (Cth), using that as the basis for what is fair and appropriate in the circumstances. It can however lead to a somewhat arbitrary measure about an appropriate outcome for you and your partner. Part of this involves crystal-balling your and your partner’s future circumstances, which can often involve aspects of uncertainty.

Interest-based negotiation requires an exploration of your interests, goals, concerns and fears to enable different options to be generated and assessed based on the benefit each of you derive from them. You will debate the pros and cons of different options with reference to these measures. This approach is often less confronting when negotiating directly and can lead to the generation of ‘win-win’ outcomes.

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What are the available dispute resolution options?

There are a number of ways in which you could resolve your property settlement and/or arrangements for your children.?These include:

1.‘Kitchen table’ discussion

Direct and relatively informal discussions with one another is a good place to start, provided you are comfortable with this and can communicate effectively with your former partner.

PRO: ????????This is likely to be the most cost-effective approach

CON:????????It is not one that everyone feels safe, or comfortable with.

2. Negotiation via solicitors

Solicitors often begin negotiating on behalf before attending mediation or a Court event. This can involve us calling your former partner or their solicitors, or exchanging letters, to progress your matter towards an agreement.

PRO: ????????Can narrow the issues, even if you don’t reach an agreement.

CON:????????You can become positional before attending dispute resolution.

3. Mediation (including Conciliation)

At a mediation, an independent third party can assist a couple to communicate more effectively, direct a negotiation and advocate for the two of you reaching an agreement. Conciliation is a more directive form of mediation where the convenors will outline how they think a Court might deal with your matter, but as with any mediation – the convenor’s view is not binding.

PRO:?????????Subject to the organisation, these can often be lawyer-assisted, which means that legal advice can be incorporated into your decision making. This is a cost-effective process when compared to alternatives and allows you to have an advocate as well as a neutral convenor.

CON:????????Private mediation comes at a cost.

4. Arbitration

Arbitration is a form of dispute resolution where you and your former partner agree that an arbitrator will decide an outcome for you if you cannot reach an agreement with their input.

PRO:?????????This outcome can be binding in financial matters if you agree for it to be.

CON:????????It cannot be binding for parenting arrangements.

5. Collaborative law

Collaboration is where you and your former partner are each represented by your own lawyer and work as a ‘team’. We plan a series of meetings (at your pace and frequency) to work through and resolve the issues in your individual situation. At FOJO, we specialise in collaborative law.

PRO: ???????The process is discrete and completely bespoke and measures the success of an outcome based on what you and your former partner decide is important to you.

CON:???????You cannot use the same lawyers if you end up going to Court (because we all contract out of going to Court so we can commit to advocating for an agreement being reached).

6. Court

Going to Court involves commencing proceedings by filing an application and other documents in the Federal Circuit and Family Court of Australia. There are dispute resolution and disclosure steps that need to be taken before you can start a Court proceeding, unless there are circumstances or urgency.

PRO: ???????When you cannot agree, the Court will make a decision. A decision means the end of your uncertainty.

CON:???????The process and the decision are out of your hands, and the costs can be significant.

Our top 6 tips for you negotiating an agreement

1.?????Take a generous interpretation: It’s easy to get defensive and take things personally when trust has broken down, but try to assume the best of what is said, giving the other the benefit of the doubt.

2.?????Focus on the issues: identify them and talk about them, rather than talking about distrust or the reasons for the relationship breakdown.

3.?????For every issue there are options: Brainstorm and consider all options available to resolve an issue. This requires preparation. Get creative and don’t rule out options for settlement before exploring them.

4.?????Practice interest-based negotiation: Talk about your preferred option by measuring it against your (and your former partner’s) goals, objectives, concerns and interests, rather than on a position that is inflexible.

5.?????Listen: Get to know what is important to your former partner so that you can help them see how different options might also meet their needs.

6.?????Get advice early: Know your what your best- and worst-case scenario in Court looks like so that you are negotiating with the knowledge of what entitlements you are giving up or gaining.

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If you are in the process of negotiating a property settlement, prenuptial agreement or arrangements for your children and need some coaching or assistance – we can help. We can discuss a negotiation strategy with you to empower and assist you to negotiate with your former partner, whether that is directly or with the assistance of lawyers.