Now that the 2017 work year has started, I’ve returned to listening to podcasts on the way to and from work.  A buzz topic at this time of year is New Year resolutions, particularly for people in business – what they are going to have achieved, professionally and financially, by December 2017.


For people who have had an unresolved family law issue in their lives for some time, that issue is probably on their minds every day.  As they go about daily life, their consciousness is filled with thought bubbles about their situation.  It is difficult to fully function with all those question marks floating around in one’s head.


For business people, that impact is magnified.  When their head should be in their business, cultivating new ideas, developing products, building relationships and generally overseeing all that is happening, for a great part of the day, their head is instead in their personal situation.  In fact, every time they get an email from their family lawyer, their train of thought is probably interrupted, and their mental energy diverted away from their business.


That division of energy has a flow-on effect in any business – all plans for the deployment of new products, and the establishment of new relationships, are probably in a ‘holding pattern’, until the family law issues are resolved, potentially allowing competitors to get a jump on those things.  Meanwhile, staff, and those connected with the business, develop an awareness of the unresolved problem, and uncertainty can set in as to how its resolution will affect them (will the business be sold, will they lose their jobs).


All this equates to a loss in the capacity of those who are driving a business, and a loss of productivity in that business.  Chances are, when assessed, and converted to a ‘dollar’ figure, these losses would total to an astounding amount.  With each year that the family law issues limp along, unresolved, that same ‘cost’ is being compounded.


How good would it feel, I thought, for those people to have that pervading issue out of their lives for good – to be able to return to undivided focus on their business, and their plans for it.  What a relief it would be for that business, and the people who work in it, not to have to carry the ‘cost’ of the family law matter any longer.


The obvious answer to that question means that, for many, to ‘wrap up’ all the lingering issues arising from their separation or divorce is probably their New Year’s resolution for 2017.


I wondered, how could those people make 2017 the year in which their divorce and separation was finally crossed off the ‘to do’ list?


There are 5 things that can be done immediately:-


  1. Take Stock. To solve any problem, you must understand it intimately.  So, ask yourself, what are the ‘big ticket’ issues that are keeping you and your former partner from reaching a settlement?  Chances are, it will be 1 or 2 clearly identifiable issues (for example, that you do not agree on the value of key items of property, such as a business).  You can focus on those issues, and their root causes (why you are apart).  That will inform your problem solving around them.


  1. Update your advice. Your case is fluid.  While your family lawyer will have provided advice on relevant subjects, and as to likely outcomes in relation to those subjects, along the way, things can change as new information comes to hand.  So, take a moment to pause, and examine the issues you have isolated in step 1 above.  In relation to those ‘sticking point’, ask your lawyer what is your best case, and what is your worst case.  That information allows you to assess where it is that what you are asking for, and what your former partner is asking for, stands in that ‘range’ of possible outcomes.  Is your position maintainable? If your desired outcome is outside of that range, it will require some adjustment.  If your former partner’s desired outcome is outside of those points, then the steps below will help.


  1. Strategise.  Once you have identified the ‘sticking’ issues, and where you and your former partner stand in relation to those issues, ask yourself ‘why’ you are apart in your thinking.  Importantly, are you each receiving advice, and therefore making your decisions, based on the same information?  If there is no level playing field in terms of documents and information, then there will naturally be a disparity in your positions.  Talk to your family lawyer about how you can convey the information which you say is central to the issue to your former partner (or alternatively, how you can have produced information which you do not have).  In relation to documents which are relevant, there is a duty to disclose them because, put simply, problem-solving cannot be effective unless each of you is armed with all that is necessary to make a fully-informed decision.


  1. Look at other approaches. If you’ve been trying a way of problem-solving, yet the results are not evident (or likely to become evident), change your tack.  If you have been negotiating with your former partner, led by your family lawyers, but are getting nowhere, there is little point in continuing down that path – unless one of you compromises, that situation will simply go on and on.  Instead, look at other dispute resolution techniques.  How can you attract your former partner to your way of thinking?  Your family lawyer will be able to talk to you about engaging a single expert, participating in an Early Neutral Evaluation (ENE), or co-ordinating an arbitration.  These dispute resolution tools can be used to cut through disagreement on key issues (such as business valuations, and curly tax issues, or even the likely property settlement outcome).  Its power comes from the fact that somebody who is neutral (not an advocate of either of you) is giving you both their opinion about the answer to the problem at large.  That is hard to dispute, and can be the ‘turning point’ in the case.


  1. Think commercially. If none of the above has worked, it is time to take stock again.  What are your remaining options, and what will they ‘cost’ you in time and money?  What is the likelihood of your achieving your desired outcome from those options?    Alternatively, what is the ‘value’ to you of having a settlement today, in terms of avoidance of legal costs, time savings, and the side-stepping of the ‘lost-opportunity’ cost (not being able to pursue other investments and projects while the case is unresolved).  This information will help you decide the following questions:  What will it cost me to achieve my desired outcome?  Am I financially in front if I partially compromise my position?  For example, to adjust your target outcome by part of the amount of the legal costs that you will spend if the case continues may see a ‘deal’ reached.  There’s no shame in changing your position if it makes commercial sense to do so.


Using these methods, your objective is to put your former partner in the position where the resolution of the ‘sticking points’ is almost irresistible.  It is then that ‘deals’ can be done.


Of course, there are situations where your former partner simply will not respond to information which is irrefutable.  For emotional reasons, they just want their day in Court. For those cases, we have a Court system which will see a Judge pronounce a final and binding outcome, by hook or by crook.


However, those cases are, statistically, in the minority. For most people, the above steps, if deployed thoughtfully, will yield results.  Indeed, there is absolutely nothing to be lost by giving them a try.


We are constantly reminded of Einstein’s saying that to do the same thing repeatedly, while expecting different results, is futile.  Accordingly, by following the steps above, you are changing things up, and in doing so, giving your settlement proposals a chance to get traction in another way.


By being adaptable, you can give yourself the best chance that you are out the other side of your divorce or separation when the time comes around to make 2018 New Year resolutions.


Dan Bottrell

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