Negotiating the best for everyone - Part 1

July 29, 2013 at 3:58 PM

'How should I proceed to sort things out?'

This is the first of five articles on managing the legal side of separation, published in The Press 27 March 2007

This is the big question on the minds of those who have just separated from their partner, whether willingly or unwillingly. The answer is important. There are choices and they can be good ones, not so good or just plain terrible.

How you, as a separated person, deal with your former partner may make the difference between a long, expensive and traumatic dispute or a relatively brief, inexpensive and trouble-free separation.

When you separate, being clear about your rights is really important, but there is one thing more important than your rights, and that is your interests. Being clear about your best long-term interests, and those of your children, should be your primary concern.

Rights are about what you are entitled to. Interests are about what is best for you and your children. Fighting for every last right that you have may be counterproductive. Some things are just not worth fighting for, especially if they erode the things you value.

When you separate, your focus should be on achieving the best longterm outcome measured according to the things that you hold dear; for example, physical and emotional health, material security, dignity and self-respect, absence of conflict and contentment with life. These measuring sticks should apply to both you and your children. Paradoxically, your objectives are most likely to be achieved by you and your children if they are also achieved by your former partner.

So what is the answer to the question posed at the beginning?

First of all, there can be no substitute for sound legal advice. You should take that advice from an experienced family lawyer (and not rely on well-meaning friends or the internet or non-legal professionals). A lawyer will explain your rights and those of the children and the various legal processes and formalities that you have to go through.

The lawyer is your adviser and advocate, but you are the decision maker. You, not your lawyer, should determine the style and approach to adopt in settling outstanding issues.

There are two basic ways to settle separation issues: litigation and negotiation.

Litigation (court) may be unavoidable if your former partner files proceedings or if he/she is so unreasonable that you have no option but to file proceedings. Court proceedings can, however, still be settled by negotiation.

Negotiation takes many forms. It can range from direct one-on-one discussion between you and your former partner, to a round-table meeting attended by the two of you, a mediator, your lawyers, support people, and even the children and a lawyer representing the children. There are all sorts of variations in between, such as joint meetings with a counsellor, and your lawyers exchanging letters until agreement is reached.

If at all possible, separated couples should settle their differences by negotiation. All things considered, a negotiated outcome is likely to be better than going through court. A long legal battle can be nothing short of disastrous, with no clear ''winner'', leaving your personal interests in tatters.

Category: Family Disputes