Australia: Negotiating with your former spouse in a family law dispute

Last Updated: 31 January 2018
Article by Craig Turvey

In my experience, clients often spend too much time focusing on the motivations and behaviour of their ex-spouse and how this might impact negotiations. Sensible negotiation preparation involves reflecting on your own emotional triggers and how these might provide a roadblock to resolution.

NEGOTIATION IS AN EVERYDAY EXPERIENCE

Put simply, negotiation is a dialogue about conflict aimed at reaching an agreement. We negotiate almost every day of our lives – whether this involves asking your children to do something they do not like, trying to pay at a restaurant when out with friends, or dividing mundane household chores between members of a household.

As we do such things frequently, little thought is put into how we should behave. We do not need to be told how we should negotiate as we know by experience how to obtain positive outcomes. For example, if you are trying to pay a bill for your friends at a restaurant, you will not yell or make threats if they attempt to pay. Instead, you might say they can pay next time or it is your turn to shout.

We know instinctively that negotiation involves compromise. Negotiating parties must make concessions to reach an agreement; further, our desire to maintain a relationship with the other parties reflects the extent of the concessions we make.

However, negotiating with an ex-spouse can be a very different and trying experience.

WHY IS NEGOTIATING WITH A FORMER SPOUSE DIFFERENT?

Separation is one of the most difficult experiences we can go through. We cannot instantly unwind the memories shared with our ex and there is almost always anger or hurt experienced by both parties.

While together, you may have negotiated issues by trying to reach a mutually beneficial outcome because you loved each other. Now, in the midst of dealing with the emotional aspects of separation, you may also have to negotiate very serious issues with an ex who you may no longer love, or who may no longer love you.

Negotiating can very quickly turn from a mutually beneficial approach to a win-lose outcome. ('I hate him, I'm not letting him win this time!').

When I began practising in family law, I noticed that many of my clients were so engulfed in anger or emotional distress that their attempts to negotiate were ineffective, or worse, detrimental to their own cause. For example, clients, despite my advice, have walked away from negotiated outcomes, which were better than a court would award, because they believed they deserved a different outcome and wanted to make the other party 'pay'.

Such a response is not logical; it is driven by emotion. You may dislike your ex for perfectly valid reasons. However, it is important to acknowledge your own feelings and emotional triggers, and to not allow them to interfere with a legally-sensible resolution of your issues.

WHAT CAN BE DONE TO MINIMISE EMOTIONAL ROADBLOCKS?

I strongly recommend you read an article written by Justine Woods here which outlines some very sensible recommendations for newly separated couples.

When clients come to see me, I recommend they speak with a counsellor, at least initially, whether to simply vent to an experienced professional or to assist in the management of any underlying psychological trauma. Do not lightly dismiss the emotional impact of separation, or think that a counsellor is only helpful for people with serious mental health issues.

Consider if there are any emotional barriers that may create issues for you in resolving conflict with your ex. For instance, in one mediation the spouse on the other side desperately wanted a family heirloom returned to her as part of the settlement. She was so distracted by her desire to retain the item, without wanting to acknowledge this and risk my client perhaps saying no, that the mediation stalled for hours. Eventually, the mediator ascertained that this was a significant issue for her and we resolved it (and my client never wanted the item!).

To minimise your ex's emotional responses, try to refrain from domineering or self-serving behaviour. Always consider the effect your behaviour may have on your former spouse; even if only because it may prevent you from obtaining the negotiated outcome you want. Think of how you may have reacted previously when receiving an angry communication from someone; did it make you more, or less, inclined to resolve the issue with them? For most of us it is the latter, as our natural reaction is to be defensive.

Finally, draw on the considerable negotiating experience you already have. While negotiating with your ex may be uncomfortable, try to use the same basic strategies you would in other contexts. For example, acknowledging that both of you will have to make concessions to reach agreement, displaying common courtesy towards each other, and being realistic about the range of possible outcomes. Try to treat the negotiation as a business decision; rather than getting distracted by your emotional connection to the other party.

© Cooper Grace Ward Lawyers

Cooper Grace Ward is a leading Australian law firm based in Brisbane.

This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.

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