To Reconcile, Negotiate, Mediate, or Litigate?

The outcome is much better for everyone if a settlement can be reached out of court, but it usually requires negotiation, which is part skill and part art. Here are some strategies that can help you negotiate the best possible settlement.

By Kathleen Aldridge and Nancy Jane Bullis, LL.B.
Updated: November 05, 2014
Divorce Settlement/Preparation

Lawyers are under a duty to discuss reconciliation and mediation with their clients. The court must be certain that there is no possibility of reconciliation before proceeding with a divorce petition. If both parties are certain that they want to proceed with the divorce, they have choices as to how they will proceed.

You may be angry and your first response is “sue the bastard.” Stop, take a breath, and keep reading. Before you proceed, your lawyer will assess your particular situation and discuss your options. If you have a choice, going to court should be the last resort for a divorcing couple. A lawsuit is never fun but in divorce situations it’s a gruelling, time-consuming, emotionally exhausting and expensive process for both parties. Sometimes a disgruntled spouse will want to go to court just to hear a judge say that they were right and their spouse was wrong. However, this is not a valid reason for going to court. First of all, it’s not likely to happen. The judge may not say what you want him or her to say. The judge’s role is to resolve issues in an orderly manner when the parties cannot. Second, the process could run you dry – emotionally and financially. Third, a spouse is more likely to cooperate with something that he or she has agreed to than to cooperate with an order imposed by the court with which the person does not agree.

When you separate, it is important to remember that the lines of trust have changed. You and your spouse now sit on opposite sides of the table with different goals than those you shared while married. One spouse may have difficulty dealing with the reality that the other spouse is on the opposing side. A spouse may show a side the other has never seen before – becoming highly uncooperative and refusing to disclose relevant matters such as financial statements. The conflict can escalate, and in the worst case scenario a paper chase can begin that will stretch for several years. In the end, you will have made difficult concessions, paid endless legal bills, and delayed the healing process that is part of the process of divorce.

Negotiating a Settlement Is Better For All

The outcome is much better for everyone if a settlement can be reached out of court, but it usually requires negotiation, which is part skill and part art. If your lawyer is negotiating for you, let your lawyer do the job for you. A professional in family law practice has the experience in these matters that can help you achieve your goals. Just be clear in expressing beforehand what it is that you want and what solutions would be most workable for you. You may not get everything the way you would like it, but if you cloud the discussions with low priority matters, you could lose on those things that are most important to you.

You are not likely to get all that you want but there are strategies that can help you negotiate the best possible settlement:

  • Set your priorities.
  • Know what you are willing to give, where you are willing to be flexible, and where you are not prepared to move at all.
  • Be realistic. Consider the Big Picture when you must give and take.
  • If your spouse responds with personal attacks, do your very best to stay focused on your priorities. Ignore any unpleasantness and keep telling yourself that your spouse’s attacks are just “noise.” They do not contribute anything to the process of reaching a ¬settlement.
  • If your spouse makes an offer to settle, think it over carefully. Discuss your options in private with your lawyer.
  • If you negotiate your own settlement, get legal advice before you do or sign anything.
  • Take a deep breath.

We’ve mentioned taking a deep breath before. Negotiating a settlement and agreeing to the outcome is something that you will have to live with from this time forward. You need to keep as level headed as possible throughout a very difficult time. Negotiating a settlement is not a time for rash or spiteful acts. If tempers erupt and harsh words are spoken, take a deep breath and do the proverbial count to ten. It will help calm you. Breathing deeply is also a constant reminder that no matter what is happening, you are breathing and you are alive. You will get through this difficult time and your life will get better.

To have-To hold

This article has been edited and excerpted from the Book To Have and To Hold with permission by McGraw-Hill Ryerson,Copyright ©2010 by Kathleen Aldridge and Nancy Jane Bullis. Katleen Aldridge, BA, B Ed, is an experienced educator, writer and editor of business and technical publications, she has co-authored several best-selling books, including the recently published Wired for Small Business Success. Nancy Bullis is a Toronto-based lawyer who provides writing, technical review and editorial services for several highly successful financial publications.

Other articles by Kathleen Aldridge and Nancy Jane Bullis, LL.B.

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January 14, 2011
Categories:  Legal Issues

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