Strategies for dealing with excessive delays in the Family Law Courts: Make sensible offers of settlement early

by Kepler Ryan on October 16, 2016

Kepler Ryan

This article is part two of a four part series which presents strategies for resolving your family law dispute in a timely way, in circumstances where many Registries of the Family Law Courts are experiencing crippling delays of well over a year between filing initiating Court documents and obtaining a final hearing.

Making a sensible offer of settlement early in negotiations is perhaps the best suggestion that I could give to someone who wants to quickly put family law legal issues behind them and move on with their lives. I elaborate on this below.

When both parties to a family law dispute have obtained independent legal advice, they will each have a fairly good idea of the parameters of dispute and the range of outcomes that may be ordered by Court. I am assuming here that the solicitors on both sides are sensible and committed to resolving matters in a proactive and practically minded way by providing accurate legal advice. I am also assuming that clients have provided accurate and comprehensive instructions to their solicitors.

Unfortunately, there is often a heightened lack of trust between the parties who have recently separated. This means that even though everyone is on the same page of what a just and equitable property settlement looks like deep down, no one wants to admit this to the other party. Not only this, there is a natural tendency for parties to exaggerate the strengths of their cases to their former partner. Every week a client will tell me that their ex has spoken to a lawyer, who has supposedly told them that they are entitled to this, that or the other, where, in my view, no lawyer presented with the same facts that I’ve been presented with could possibly have given such advice. Keep this in mind.

Family lawyers also see this lack of trust and scepticism play out in more formal negotiations all the time. There is often a reluctance in solicitor correspondence to make a formal offer of settlement which concedes too much too soon, just as there is a fear of starting negotiations with a sensible, just and equitable proposal. The reason for this seems to be the concern that the basis that the other party will not reciprocate with a sensible counter proposal. So we find ourselves in a deadlock.

What are the consequences of these ambit claims? Months pass, letters of negotiation are exchanged, legal fees slowly but surely creep up (as do parties’ frustration levels), but otherwise no one has a lot to show for it and the parties are no closer to a resolution. Not surprisingly, each party has played a role in contributing to the other party’s initial fears that the other would not be reasonable. It is a self-fulfilling prophesy, each party anticipating or responding to the other party’s unreasonableness with unreasonableness. Do not underestimate the long term impact that this can have on a party’s perception of the other party’s bona fides and the long term psychological road blocks that this will put on the path towards a sensible agreement.

Which takes me to the next important observation. Because the Court process is so desperately slow, it makes strategic sense to commence Court proceedings as soon as possible if you have a strong sense that the other party is never going to come to the negotiation table in a meaningful way. At the very least, you have an endpoint in sight and what’s more, it is amazing how most parties begin to accept legal advice when the alternative is very significant legal fees and the risk that a Court will Order a worse outcome than that which the other party is offering.

Strategic decisions regarding how to best negotiate a resolution to your family law matter are oftentimes an important but under-considered aspect of the family law process.

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