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What happens if my partner and I cannot reach an agreement?

Podcast Episode by Pearsons Lawyers
13 December 2020

(Transcription)

Joe Schepis:
Hello and welcome to the fourth Pearsons Law Podcast.

Leanne Abela:
I’m Leanne Abela.

Joe Schepis:
And I’m Joe Schepis. And last time we spoke about what happens if my partner and I do reach an agreement? This time, we’re going to talk about what
happens if you and your partner cannot reach an agreement.

Leanne Abela:
And that can be really scary for people, can’t it, Joe?

Joe Schepis:
Very scary because people think of litigation, a long time in court, costs, and they’re all real, they’re all real concerns.

Leanne Abela:
And I don’t know, people are scared of coming to lawyers. We’re not as scary as dentists so I don’t know why they’re scared of us.

Joe Schepis:
We don’t hurt them.

Leanne Abela:
We do not hurt them.

Joe Schepis:
Not physically.

Leanne Abela:
Not physically anyway. So I think this podcast will be really informative so that you know all the different pathways that you can take.

Joe Schepis:
The most important thing when you say a lawyer is that the lawyer tells you right at the get go, and we can do this within the first 30 to 45 minutes, what you can expect at the outcome of your case. All things being given and all things known, we should be able to tell you within the first half hour or so how things might end up at the end of the day. And what is surprising is that I’ve been involved in litigating, as Leanne has, for 35 years, and at the end of it, I often like to go and go back to my notes on what I told the client 18 months or two years earlier, and more often than not, the case is that what I told them then is pretty much what happened. What do you find, Leanne?

Leanne Abela:
Well, in fact, even today, as we’re dictating or we’re doing this podcast show, we’ve got a case that’s got a result where a year ago we offered somebody a particular percentage. I think in this particular case we offered the wife 60%, and today she got a settlement of 52.5%. So we act for the husband and in fact our client did better than what we offered the wife so they’ve gone down that litigation path for nothing, except to spend money on lawyers.

Joe Schepis:
And so what happens in that situation when you’re forced down a litigation path.

Leanne Abela:
We ask for costs. We ask for the other party to pay our clients cost because it was unnecessarily spent. Now it is discretionary, and it’s up to the judge whether or not they order it, but there are various things that you can do along the way, such as offers of settlement, to help protect you against unnecessary litigation and hopefully get your costs.

Joe Schepis:
Yeah. Well, I’ve had two this year where we’ve gone to court, similar to you, and we made offers of settlement. The other side were insisted on going to court. And we got results where our client got a result better than what we offered, and the other side acknowledged that we had a claim for cost and they paid our cost voluntarily. So it’s important that you get accurate advice early on so that you know exactly the path that you’re going down. So when you can’t reach an agreement, what’s the option? The option is that’s what the courts are there for, they’re there to resolve unresolvable dispute.

Leanne Abela:
I guess you don’t really need to go to court necessarily if you can’t agree, there are a few steps and different pathways you can take beforehand. So the first is, as lawyers, negotiating. So when clients come to us and they’ve tried everything with their partner that is talking to them, using family members to help them come to a deal, then our task is to prepare a, what I call the killer letter, the letter that basically sets out, “This is our offer, this is how we come to it, these are the sections of the act that are relevant, and this is why we’ve reached our calculation, and here is our calculation.” You put that as what’s called an offer of settlement to the other party, and you start the negotiations with respect to offers and countered off as being made.

Leanne Abela:
Those negotiations can take place over a number of weeks or months. For me, I don’t like the negotiations to take place for too long because it costs clients money. And what I found as a result of the… And you’d be the same, Joe, because we’ve got 35 years of family law experience under our belt, you can tell whether or not the other party is going to be reasonable or unreasonable. I sometimes say to my clients, “I can smell it.” I can tell as a result of the way they’re responding, or their lawyers responding, or the counter offers that are being put, whether or not we’re going to get there through negotiation.

Joe Schepis:
Absolutely.

Leanne Abela:
And I’ll often call it out and said to a client, “Listen, we’re getting nowhere. We need to issue proceedings because we need a timetable and a structure to get them to be reasonable. And the umpire along the way…” Which is umpire in mediation, umpire at the court, “Needs to tell them because they’re not listening.”

Joe Schepis:
Yeah. Often it’s a party that’s not reasonable, or it could be their lawyer. And that’s why it’s important that the clients know upfront, roughly what the possible outcomes would be. And the court process is not a scary process, it’s designed at every step of the way to obtain the information that’s relevant to the case before the court for clients are forced to go to mediation through the court process. The courts don’t want to make a decision, they want the parties to make their own decision, if they can, and to come to their own resolution. The courts have found that people that come to their own agreement about these matters are far better off than people that had to go through the court process and for the umpire and the judge to make a call on their lives.

Leanne Abela:
So there are lots of reasons people end up starting in the court process and it can be it’s a complicated case with structures of companies, or trusts, or various businesses, or other parties, third parties involved in ownership of assets. It could be because one party is not disclosing assets or not disclosing their financials because they don’t think that they should have to. Well, again, the court can step in and order discovery so disclosure has to happen. It’s inevitable, the disclosure, financial disclosure will happen. But more often than not, it’s the difficult person on the other side, or our own difficult clients that cause of the matter not to settle. And that’s just a personality thing or as a result of a bad marriage breakdown. And there’s really nothing you can do about that.

Joe Schepis:
I don’t know about you, Leanne, but what I tell my clients is, in your own mind at the get-go have a budget, a budget about how much money, how much time, energy, and whether it’s three months or six months, how much time you’re prepared to elapse and invest in negotiating. And during that period you have discovery, you have valuations, you do all the right things, and if you reach an agreement, great. And then at the end of that time, whether it’s three months or six months, 3,000 or 5,000, once you’ve exhausted that budget of time and money review it and see, “Well, what have we achieved for that time and money? Are we getting closer to resolution, or are we just going round and round in circles?” And often people are getting closer and we continue that process. But sometimes you just go around, round in circles making no real progress, and in that case, the best advice is, let’s just go to court and get the time running in court because the timeframe in court only starts running once an application is filed.

Leanne Abela:
Another option of course is mediation. And there are a few different types of mediation. The most common two types are that you go to a mediation center, such as Relationships Australia, or Family LifeWorks, the various mediation centers available. You can go in relation to children, or you can go in relation to financial matters or both. Lawyers normally don’t attend those mediation centers, the parties go themselves, and they’re assisted with the expertise of a mediator to help resolve matters or flesh them out.

Leanne Abela:
The second type of mediation is with the solicitors present and a mediator who gives their opinion, but of course, can’t determine the matter and helps facilitate useful discussions to try to reach a solution. Most people don’t do mediation before they issue proceedings, but you can, and I’ve had instances, as I’m sure you have, Joe, where a client has said, “Before we issue proceedings can we try a mediation?” So you do a mediation but if you do end up issuing proceedings, mediation is compulsory, it will happen, parties have to come to the mediation table to try to resolve it without a full-blown hearing with wigs, gowns, people in the witness boxes, and days in court.

Joe Schepis:
And there’s another option, of course. Sometimes what we do is if the solicitor on the other side is someone that we can work with and is reasonable, and you think there’s some prospect of having some proper and meaningful negotiations, we have what’s called a round table conference, which is similar to the mediation, but without a mediator. So that’s the solicitors and the clients get together at one place, at the one time, put aside half a day, whether it’s the morning or afternoon, and just set it aside to have some intense discussions and negotiations to work through all the issues and try and come to an agreement. So the pressor, you either do it through correspondence or letters of offers with disclosure and valuations and then you put an offer in writing, you have a mediation or round table conference. So it’s important that you exhaust every avenue possible and available before you go down the litigation path.

Leanne Abela:
Now in a podcast later on in this series, we will be discussing What Happens When I Go to Court, because that is a topic in itself. That is the preparation for your final hearing, the interim hearings, the matters that arise if it’s a children’s matter and the different pathways, if there’s sexual abuse or violence, another pathway, urgent interim lists, small property lists, COVID lists. All of those things come into play, and we will cover all of those aspects in a further podcast in this series. So for now, our advice to you is to attend Pearsons Lawyers and obtain your free appointment, which will give you all the advice you need on all of the aspects, but more specifically tailored to your individual case.

Joe Schepis:
And we’ll tell you all the options available to you so that you can walk away confident knowing what options you’ve got to explore, and you can make a decision about what’s best for you. So come to Pearsons for your free consultation and know where you stand.

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