I would be a rich man if I had a dollar for every person who has said to me… “We want to settle this without lawyers”.
I have been a family lawyer for nearly 40 years. In approximately half the cases I have dealt with in that time we were able to negotiate a settlement with the other party and their lawyers, and only go to Court to have the agreement formalised. In the other 50% of the cases we were not able to negotiate a settlement and started Court proceedings.
In Australia, statistics are kept about all manner of things relating to family law and the Family Court. One statistic is the number of cases commenced in the Family Court which end up in a trial. The statistics are consistent. Of cases commenced in the Family Court, more than 97% settle and do not get to a trial. Some cases settle early in the process, some settle on the doorstep of the Court. The settlement rate is very high. The reason is that in almost all cases parties are represented by lawyers. Good lawyers apply the law to the facts of the case and advise their clients what is a reasonable settlement. Lawyers are good at negotiating, and in Australia Family Court lawyers are better than most.
In recent years, other ways to resolve disputes have become popular. The most commonly used alternate dispute resolution process is mediation. Mediation is where parties and their lawyers with the help of a mediator negotiate a settlement which the parties are happy with. It is always better to have the parties reach an agreement they can both live with, rather than have a decision imposed upon them by a judge.
At mediation parties work out what is best for them. Sometimes the agreed outcome is quite different to what a Court might order. The important thing is that it is an outcome on which both parties agree. They have come to a resolution through negotiation and compromise, and it is not unusual for the parties to leave a successful mediation with their relationship improved. This is particularly important in cases involving children. The couple will be the children’s parents for the rest of their lives. It is important for their children that they are able to maintain a civil and courteous relationship. They will be attending birthdays, graduations, weddings and one day may have grandchildren. I tell clients that it is important that at the end of a relationship although they may no longer have a marriage, they still do have a family.
My advice is to speak to an experienced family lawyer before you start negotiating. He or she will be able to discuss with you options such as mediation; will be able to tell you how long Court proceedings may take and how much it might cost if you cannot settle. Most importantly, you will get advice as to what is a reasonable settlement in your circumstances. So if you wish to negotiate and sort these things out “without lawyers”, at least you do so with some knowledge of what might happen and what it might cost if you cannot resolve it yourselves.