Negotiations

Best-Suited Clients

The negotiated approach is also well suited to clients who may describe their circumstances as straightforward or complex, but who profess the shared desire not to proceed to court.

The family law lawyer will usually negotiate and draft a domestic contract for clients who are:

There are clients who do not wish or are unable to meet in the same room as the person from whom they are separating. They turn to this process, relying on the services of their family law lawyer to parlay their wishes and needs to the other party. Over time, emotions may calm and negotiations may be conducted with clients present at optional confidential four-way (two lawyers and two clients) settlement meetings.

The Process

The lawyer works privately with the client to understand the client’s urgent and future needs and goals. What the client wants to achieve and the related factual and evidentiary basis are gathered and considered. The lawyer will identify to the client any risks or concerns and outline the strengths of the client’s position. From there the lawyer and client will develop sound strategies for the lawyer’s best presentation of the client’s case to the other lawyer.

Communication between lawyers is often in writing. Each lawyer will request complete financial disclosure from the opposing spouse. Neither lawyer may communicate directly with the opposing party unless that party is unrepresented by counsel.

Urgent matters will be dealt with first, often confirmed by written interim agreements. The written agreement allows for enforcement through the court if either party fails or refuses to satisfy the agreed obligations set out in the contract. The interim contracts will be incorporated into a final domestic contract, such as a separation agreement.

Negotiations may be of a cooperative or competitive nature. Where the clients jointly seek to find a reasonable, practical and fair settlement between them, the negotiations will likely progress in a cooperative way. Where suspicions, unresolved emotions, or other negative impulses drive a client’s instructions to the lawyer, then negotiations may spiral out of control, creating an impasse.

The lawyers each have an ethical obligation to explore productive ways to redirect the clients to resolve the dispute before they opt to pursue litigation. With creative and client-focused strategies, reasonableness often prevails and the negotiations proceed to conclusion. Why? Because the clients must attend a mandatory information session established in most Ontario family courts, in addition to mandatory mediation, before seeing the judge. Since commencing litigation means these educational and settlement-focused interventions will occur, effectively delaying the lawsuit, it just makes more sense to tackle the negotiation impasse.

One way to deal with an impasse is for the lawyers to arrange for the clients to attend confidential mediation with an impartial facilitator. Sometimes sidestepping into a new short-term process prompts the clients to reconsider their positions.

The Cost

The cost varies, depending on the complexity of the issues and how entrenched each client is in his or her position. Involving a mediator will likely be a shared cost between the clients.

If there are assets to be valued, the client who owns the asset will be responsible for paying the accredited valuator unless the clients decide otherwise.

Each client is responsible for paying his or her own legal fees incurred for the negotiation and drafting of the domestic contract.

Timeline

There is no definitive way to assess how much time matters will take to be settled. For clients seeking to have their settlement formally incorporated into a domestic contract, complying with the exchange of proper financial disclosure and then negotiating to reach a resolution may take a couple of months to several months. With a more complex matter where the clients face possible negotiation impasses or emotional interference, resolution may take significantly longer, perhaps closer to a year or more.

Settlement-Focused Results

The goal of lawyers negotiating on behalf of their clients is to assist the clients to reach a satisfactory settlement for both, and to confirm the settlement in a domestic contract.