January inevitably begins with palpable gusto.


For business owners and entrepreneurs, there are new targets to hit, new products to launch, new markets to tap into.  For professionals, there are new year’s resolutions to advance their careers and improve their personal lives.  For parents, there are goals to achieve for their kids’ education and extra-curricular activities.


Whatever you do, the New Year starts out with the process of distilling the next 365 days into the answer to one question – by the time I pop the Champagne on 31 December 2019, I want to have achieved X, Y and Z.


For anyone enduring a separation and divorce, there’s a good chance that to resolve their case, and put it behind them, will be on that list.


For many, that objective will be ‘on the list’ for one simple reason – it did not get done last year.  And for some, it will not have been completed the year before, or the year before that.  The problem has become long in the tooth.


The reason it is on the list is always the same – I don’t want to be walking around with my separation in my head anymore.  It is a distraction from my work.  It is a diversion of time resources from my business.  It is affecting my relationship with my kids.  I just need it done.


Statistically, only about 4 of every 100 cases filed in the Court ever reach a trial, and require a decision by a Judge.  The remaining 96 percent resolve by people reaching agreement between themselves, and having their family lawyers formalise their own deal.


Most people pose the following question to their family lawyer – if I don’t want a trial, and if I know that my former partner does not want a trial either, why are we headed towards a trial?  Why won’t our case settle?


Sometimes the answer to that question is clear – there is a disagreement about some key issue, such as the value of a significant business, or about the treatment of a considerable inheritance.  The family lawyers can then focus on those points of impasse to reach a deal.


But in many cases the answer is not clear – there is no obvious reason why the case has not settled.  It has just drifted, unresolved, for years.


In that situation, the reason for the blockage is often ‘non-legal’ in nature.  There is something holding the case back.


So, for those who want to have their case behind them in 2019, their task is clear – to find that ‘something’.  That je ne sais quoi that will be the breakthrough in their case.


Every case is different, and the answer won’t be the same for everyone, but it some cases, it can be as simple as this – some things take time.


That is cold comfort for business proprietors, and professionals, who are used to working to deadlines, and making decisions based on data.  For them, it is hard to see how having additional time can be of benefit to problem-solving.  But it is true – some cases just won’t resolve until both parties are ready to turn their launch keys.


To illustrate how simple things can become the log-jam, family lawyers often see the following dynamic.


Person A wants the separation resolved, preferably yesterday.  They have been separated for some time, and feel the separation already ought to be finalised formally.  They have run the bases – they have produced financial and other information.  They have a clear idea of outcomes.  They have delivered settlement proposals.  They are ready and willing to strike a settlement, and want to move on.


Person B, meanwhile, is reeling.  The separation has come as a shock to them.  Some days they are bewildered as to how, with professional help, the relationship cannot be reconciled.  Other days they are angry that this could be happening to them.  They are debilitated by the tasks with which they are confronted, such as gathering and disclosing financial information, and valuing assets.  They are simply not ready or able to make critical decisions such as whether a settlement offer from Person A should be accepted or not.  They are mystified as to how Person A could possibly be asking them to consider anything ‘final’.


In short, Person A and B are dealing with the same problem, from totally different mindsets.


Person A has processed the separation, has grieved the loss of the relationship, and has had time to be at peace with the relationship breakdown.  They now want to ‘move on’.


Person B is in a difference space entirely.  They are in shock.  They are angry that their former partner seems so ready to talk a final deal.  Their decision making is debilitated by their hurt.  They are just not ready for decisions on any big-ticket items.


What’s wrong with this picture?  Simple – how can a case resolve when Person A and Person B are in such different headspaces?


In this example, it’s not about the money.  It’s not about the disclosure.  It’s not about the value of assets.  It’s about the feelings.  A recognition that one party’s emotions are holding them back, and that they need support of some kind to get through, something to put them in a position where they are ready to settle.


Believe it or not, some cases hurtle towards a trial in this mode.


And in many instances, the more Person B is exposed to pressure, the more the impasse is widened –Spouse B being ‘forced’ forward only causes them to retreat further.


This need not have happened had that ‘something’ been isolated and worked on at a far earlier point.


This is but one example of how a simple issue (and in this illustration, a non-legal issue) can be holding a case back from a settlement.


If Person A were aware of that, and could handle things differently, could years be shaved off the process?  Almost definitely ‘yes’.


So, if you find yourself in the 4% of cases approaching a trial, instead of the 96% which are solving by consent, what do you do?


The answer will differ from case to case, depending on its unique dynamic, but it might involve the following:-


  1. Diagnose – Asking your spouse what is holding them back from a resolution, and why. You can observe that the case seems to have hit a roadblock, and that you are wanting to appreciate what is going on for them.  If you can understand their mindset, you can alter your approach, and open up possible solutions;

  2. Develop a treatment plan – Talk to your family lawyer about steps that can help break-through the blockage. There are plenty of options.  In the example above, engaging a relationship counsellor can help.  Lawyers often call this ‘separation counselling’.  It is designed to help parties to separate respectfully.  It may be that it is a forum for a discussion which has not yet been had, but which one party needs to have (for ‘closure’, or some other reason).  It can certainly involve challenging subjects (such as why reconciliation is not possible), but this may be what is needed to allow one party to accept the situation, and move forward;

  3. Treat – Ask yourself, how can you put your former partner in a position where he or she is prepared to ‘turn their key’. That might be giving them some time.  It might be getting them some counselling or other therapy.  It might be arming them with some information that they need.  But that’s expensive, you might say.  It may be, but how expensive is the alternative – the case drifting, without finality?  Sometimes costs of this nature end up paling in comparison to the costs of the alternative.  While it might seem counterintuitive to add additional steps (and therefore time) to the equation, in fact it might be a time saver in retrospect.


This seems simple, and it is.  But it is so deceptively simple that it is often overlooked.  These sorts of issues create roadblocks in cases which ought to resolve much quicker.  The point is, with a few frank discussions, a bit of objectivity, and a willingness to take a different approach, roadblocks can be opened up, and see you in the 96% of cases settled out of court.


So, if getting your case resolved in 2019 is high on your list of ‘to do’s’, pause and ask yourself, what is the blockage in my case, and why?  How can I identify what that blockage is?  To isolate that ‘something’, and to work on it, may well be the breakthrough you’ve been waiting for.


Dan Bottrell

January 2019

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