Dancing the Negotiation Waltz
G’day. I’m. Stephen Page from Page Provan Family and Fertility Lawyers. And thank you for watching today. Today I’m talking about dancing the negotiation waltz.
And if you think of a waltz, it’s always got the that 123-123-123. And if you’re going through a divorce or separation, then it’s inevitable that you’ll engage in negotiations.
I’m amazed that many years ago I was asked by the Law Society to go out and judge mediation competition at a local high school. And high school students were talking about mediation when no one would talk about mediation. And I’m amazed at how things have changed that often clients will be talking about mediation on our first interview.
And so often there’s this focus where we’ve got to go to a mediation to be able to negotiate. No, you don’t. Often negotiations can occur directly between husband and wife, between the parties if you’re not a husband and wife, but you can negotiate direct. But if you’re thinking about a property settlement, often you’ll need lawyers involved. So we give you advice about that.
But you don’t have to go to a mediation. A mediation is often very helpful, but it can be an expensive way of going. It may be an appropriate case to do what is collaborative law, and my partner, Bruce Provan, does collaborative matters, but otherwise, there can be negotiations between lawyers. We do such simple things as picking up the phone. Some lawyers don’t like doing that. They will just send constant emails, and an email is useful in the sense of recording certain statements. But of course, it’s one-way communication. It’s a monologue, just like any other form of letter. It’s not the same as a phone call where you pick up the phone and have a dialogue.
Some of the other tools with negotiations are to have a roundtable meeting. They used to be really common, but not so common now. But I really think they’re a good idea if the other side are comfortable with it, which is you have two parties and their lawyers meet at the same place. They don’t necessarily have to be in the same room. They can have a shuttle between rooms, but I think it’s important to have that. If there’s a willingness to do that, then it’s great.
And then, of course, another way of negotiation is mediation, where you have an independent third party come in and move between both sides, either in the same room or different rooms or doing it via Zoom to try and reach a deal. And their role, of course, is not to act as a judge and jury, but just to try and see if a deal can be cut between both of you.
Even if you go to court, and court should always be seen as the option of last resort. The only people who want to go to court are those who have something wrong with them or have the unfortunate necessity of going to court because the only benefit of going to court is you have someone else make a decision on your part and therefore telling the other side what has to happen.
And of course, the problem with that is that the judge doesn’t know you, doesn’t know them, doesn’t know your kids. And a decision that’s imposed from above is much less likely to be complied with than a decision reached in negotiations that each of you have taken a part of and have an emotional commitment to.
But even if you go to court, don’t think that there is not a space for negotiations. Most matters that start out in the court process don’t end up in a trial. It used to be about 1-3%. I think it’s higher than that now it’s about 5% of matters finish up on a trial. So that means the other 95% never get there. And why? Because at some stage during the process, there are negotiations and provided that they’re useful, it’s important to have those negotiations and they will have happen at certain stages that might be a mediation or a conciliation conference or family dispute resolution or all of those things happening, but also directly between the parties and also through the lawyers for the parties.
And if there’s an independent children’s lawyer with the assistance of the independent children’s lawyer as an honest broker. And why? Well, who wants to be in court if you don’t have to be? You want to get out of there. You want to get on with your life. You want to stop burning up money with your lawyers and you want to make sure that your children aren’t continually traumatised by the process of court, because as soon as you’re focused on that court process, then there’s this conflict between the parents and that, unfortunately, is exacerbated by court and visited upon the children who of course, are powerless to control it.
They are the victims of this process. So the more that you can get out of that court process, the quicker you can get out of that, the better. My way of looking at family law matters Is really simple. And when I’m helping clients, It’s this get you in, get you out as quickly as I possibly can. And that accords with my philosophy, which is, oh, Lord, give me patience but give it to me quick.
I want to get you in, get you out. The sooner you get out of your problem, the better. You can get on with your life. Not worry about me or worry about other lawyers that you can focus on your children, focus on your finances and just get on with your life and enjoy life.