July 6, 2012

A good bargain? Striking the right balance with divorce settlements

By Norman Taylor, Consultant

Traditionally, negotiations within court proceedings are similar to the bargaining situation that takes place in a back-street bazaar, where one party goes in high, the other low and it is hoped that the outcome will be somewhere in the middle.

It is almost accepted that if each party is unhappy with the result, then it is probably correct. This process inevitably results in a lose/lose situation – if the demands are incompatible and the desired positions too far estranged, then neither party can possibly achieve a satisfactory outcome.

Nevertheless, far too many couples still race blindly into the court process without properly considering the more agreeable – literally – options open to them. At Jones Myers LLP our approach is shaped by years of experience seeing what damage the contested court process can do to families suffering the trauma of divorce or separation.

We approach these issues from a different starting point, namely: “What is the best solution to be devised for the family by the family?” Mediation and the collaborative process (CFL) offer forums for the parties themselves to come up with creative solutions that work for them, in a safe and non-adversarial environment. In CFL  they are each supported by an experienced, suitably trained lawyer who is with them during the negotiation meetings.

When someone “wants” something, and the other does not agree, the response should not simply be “no”. It should be “why?” That opens up a dialogue and, vitally, encourages listening and taking on board the other’s concerns. In that way the listener will try to find a solution that not only satisfies his or her concerns, but also those of the other party – a win/win situation. Sadly, the court process has no time for any such dialogue.

Nicholas Cusworth QC, chairman of the Family Law Bar Association, has recently recommended reforms to the way in which courts divide assets on divorce. He suggests “community of marital property”, meaning that any property acquired (but not inherited) during the actual marriage be divided equally as the default position. He further comments that on getting married, anyone who doesn’t want these rules to apply should enter into a pre-nuptial agreement.

His ideas have reportedly been prompted by “pressures on the family justice system”, which he said are bringing the system to its knees. We couldn’t agree more that this is the case, but would argue that the objective should be to relieve pressures on families, not just on the system. Dividing assets by percentage often does not leave the parties feeling that their needs and concerns have been satisfied. A “one-size-fits-all” system ignores the fact that each set of circumstances is quite individual.

At Jones Myers we’re making a small contribution to relieving pressure on the courts by encouraging our clients to engage in a non-confrontational approach to settlement – where the chances of striking a balance agreeable to both parties are greatly improved. The benefits to the whole family are potentially enormous, not only financially – by saving the costs associated with contested court proceedings – but also by minimising the emotional damage caused to all involved.

Sadly, not all cases can be resolved so amicably. If mediation and CFL are not appropriate, clients now have the further option of arbitration with our very own Peter Jones, a former deputy judge. If the court process is unavoidable, our very experienced lawyers will structure the proceedings to enable the case to be dealt with as quickly and painlessly as possible.