Negotiation is the process of people deciding to make concessions to achieve a compromised outcome. The nature of the process is that each person compromises their ideal outcome to get an outcome that suits their resources.
Negotiation is a tool a person can choose from to resolve a family law matter.
Negotiation is a much-discussed concept. We actually do it all the time and it’s part of how we transact life. Simple things like smiling and working out where you stand in a queue is a negotiation as is finding and taking a car park.
Negotiations can be between the people themselves or by correspondence between their lawyers. The advantage of using lawyers is the clarity of each offer and their ability to compare offers to the alternatives to negotiation. The Australian family law system builds in enormous judicial discretion. When family lawyers assess an offer they apply, among other issues, the principles guiding that discretion to your case. That advice contextualises how good, or bad, a negotiated outcome actually is.
People can become disillusioned with negotiation. It can be slow, because it depends on one party answering the other. Negotiation can be a steady process, like a tennis game where each player lobs a ball back to the other without much ground being gained or lost.
However, the process can uncover and clarify the genuine disagreements and barriers to resolution. People often have unspoken goals or fears obstructing agreement. Sometimes the best way to understand the other party is to consider their response to an offer.
Examining why people want parts of an outcome is key to understanding which parts can be compromised to pursue their priorities. For instance, one person might want to maximise their superannuation and the other might want to keep the family home. Negotiated outcomes can be tailored to those goals where a decision imposed by a judge might not be.
Negotiations can provide data that, like advice, informs decisions. If you make an offer splitting the value of every asset down the middle, and the other party responds with an offer adjusting how the value is distributed between assets, you have learned about what assets are important to them and which they are willing to compromise.
What a person holds steady and what they concede helps to work out their boundaries. Boundaries can change as time continues and resources are spent.
The “I must have” at week three of separation may mean nothing after 12 months. It is important people don’t get stuck holding onto a now irrelevant goal.
Your lawyer should provide advice at each point.
Sometimes a client will say their former spouse is a skilled or tough negotiator. Sometimes that describes the other person, sometimes it expresses uncertainty, powerlessness or a sense that resources are not equal. Relationships with unequal power can leave people believing, rationally or not, their ex-partner has extraordinary powers to control the outcome. An experienced family lawyer considers the broader context to understand these comments.
A formal negotiation can be a discrete step people take, but negotiation between the parties continues throughout. Many thousands of matters have been resolved by letters between lawyers or discussions around a table. Thousands more have been resolved by spontaneous negotiation outside the courtroom. Negotiation is part of every tool used to bring matters to an end.