The 7 Characteristics of Effective Divorce Settlements

I am reminded of the old country adage: “Just follow the road and when you come to the crossroads, take it.” You may have seen this separation coming or been blind-sided by the harsh reality that your marriage is at an end. You may have thought you were in primary control of the decision to split up or now feel like a bystander to your life. The illusion of control or delusion that this is all the result of other people’s doing is entirely perceptional. The stark reality is like that crossroad collision, there is a statistical reality to another uncharted turn in life’s journey. A significant minority of marriages will end in divorce. That’s forty-two (42%) percent by most tallies. However, now it’s happening to you.

So let’s look at your choices. Let’s not focus on what you did or didn’t do (i.e. referring to marriage closure issues in post-no-fault divorce). And we’ll definitely not “should” on you. You should have had a pre-nup agreement or Marriage Contract, or you shouldn’t have gotten married at all. Back to reality and concrete attitude and empowerment strategies that get you ready for the ride that delivers a healthy transition in the Divorce and Separation experience. And hey “watch out for that first turn” – it’s actually a crossroad. Make the right turn; it leads to a better future.

That is why your choice of the right family dispute professional is so important to your future success in securing a better tomorrow. My professional experience is informed by decades of witnessing firsthand examples of proven success in mediation and collaborative practice, or indeed, cooperative negotiation.

I often sense that people are drawn to the spirit of respect and dignity and know implicitly that fairness and justice are matters of self-empowerment even at the most difficult time of their divorce or separation. Addressing the emotional dynamics with the legal divorce is a fundamental part of modern family dispute resolution. Separating couples soon realize that entails more than understanding the law model or the technical realities of separation agreements or divorce settlements. Candidly, clients are seeking cues to success and clarity around the expressed values that will help them achieve a wise and durable arrangement as the family restructures through the divorce and separation experience. I would suggest the following universal components of an effective divorce settlement in terms of clients’ emotional preparedness.

Acceptance

Mutual acceptance is a definite indicator of the nature and degree of professional intervention in dispute resolution. Separating spouses may be at different places in their respective understanding of marriage closure issues and “where do I go from here” but a fundamental step towards success in conflict dispute resolution is the mutual recognition and acceptance that the marriage is over. I would view acceptance as the major psychological foundation for effective interest-based negotiation. The capacity to form the thinking around your own distinct and individual needs and wants remains pivotal to self-empowerment and “going forward”. Unfortunately, struggling with this individual insight often transmutes into fighting against the collective process of resolution. An essential element in my initial consultation deals with the current stage of marriage closure. We need to know that you know that marriage counseling is available in our community. Why? Because marriage is a living thing and it is organically on the path of growth or atrophy. The ups and downs of marriage – the better or worse of marriage are part of the narrative of our social convention. To a family resolution practitioner, the non-judgmental approach is to appreciate whether the need to repair or end the marital relationship has been sufficiently and fairly explored by the spouses. If they have determined relational repair to be unavailable, then we are bridging into a realization or prospect that one stage of the relationship has ended (qua intimates) and another stage (qua co-parents or friends) has begun. As we know, acceptance is the latter phase of an emotional journey akin to grieving the death of a spouse. I would commend a vast array of literature and resources which assist people through the critical path of working through individual recovery. This is hard but necessary work as acceptance remains a major natural resource enabling voluntary progress in achieving a settlement.

Conflict

“Conflict” and “Crisis” are words that denote hardship, distress, and adversity. Perhaps if we re-frame these concepts for our own use, we may maximize the potential for settlement. Conflict is defined as a perceived interference by the other spouse and like mistrust is ever-present in its potential to derail the settlement. However, conflict is not absolutely inevitable or necessarily prevalent in a settlement. That is, there are many substantive points arising in the separation process like time with children or financial issues around evaluation or the matrimonial home but if we can reduce or eliminate conflict, then we are obviously left with a less complicated resolution. Now we are able to really focus upon the substantive issues and use common problem-solving strategies. We increase information for individual decision-making and further decrease the prospect of positional bargaining. As we mediators say “go hard on the problem – soft on the people”. People come to realize that conflict is unnecessary and remain vigilant of allowing anger, fear, or resentments to spin out legal or process points.

Crisis becomes re-framed as a process of mutual decision-making as opposed to an event of a confrontation. Mutual respect and interest-based resolutions become possible and the probability of success increases.

Cooperation

Acceptance and conflict reduction become the foundation for active cooperation and progressive settlement. Through individual insight, clients are at ground zero and seek out proven values to really move the agreement forward. Cooperation is a non-adversarial strategy that is based on the mutual acknowledgment of differing perspectives and the over-arching common interests which will promote traction towards an agreement that speaks to their own individual requirements. Cooperation in negotiation theory is a shrewd and sophisticated approach to deal-making. Reciprocity removes the win-lose dynamic and promotes win-win outcomes. You will consciously eliminate the unrealistic outcome of making the other party lose and accordingly become a shared victor, particularly in salvaging the family resources from the consequences of conflict-ridden litigation.

Purpose

A capable family practitioner will work to identify your individual and collective goals. Unity of purpose can transform a settlement opportunity into a meaningful statement of shared values. For example, a very common goal is to help the children through the divorce and separation experience. This includes good financial planning and cooperative bargaining within the settlement process as well as joint positive messaging to the children. The parents purposely and proactively minimize dislocation and heighten their well-being and security as the family restructures through the healthy transition. My proven strategy in cooperative, collaborative, or mediation practice is to enhance principled resolutions around the children and then ensure a protective firewall is organized in the discussions which separate and isolate other substantive issues. People are becoming more aware of the consequences of conflict on children and are ready to “walk the talk” for their sake. Other purposes that I have heard include achieving financial independence, acknowledging the spirit of true friendship, and respecting grandparents or blended families. The clarity in purpose will keep you focused on your goal and help you remain self-disciplined and accountable to principled negotiation.

Lateral Leadership

Lateral leadership means effecting influence on others without the means of authority. It resounds in the opportunity to persuade and this becomes a positive force in cooperative negotiation. Once again, there is an aspect of self-identity and self-actualization. It is about making sure that you and your separating spouse can avoid external pressures and stay true to your individual and collective visions. A majority of my clients report that they are besieged by conflict cheerleaders prompting them to abandon conflict reduction and escalate a fight. Then there is the troubling mystique of the courtroom barracuda lawyer that saves the day to ensure victory at all costs. Leadership is based on responsibility and acknowledging the duty to do the best for your family in these circumstances. As we have seen, these characteristics speak to your higher self and good responsible choices in tough times. Navigating through to settlement can be a difficult journey although lateral leadership maintains your bearings and helps you stay the course. As they say, a ship never leaves port without a destination and you remain ultimately responsible for a safe and successful voyage.

Team Approach

Using the right professional or mix of different professionals uniting in your common vision is another key characteristic of success. Choosing the right process manager as your legal or mediation counsel is a crucial step. As well, it’s ensuring the reliable and comprehensive information is generated to ground your best decisions in the process. This may include real estate agents, mortgage brokers, real estate solicitors, financial advisors, pension actuaries or lawyers for independent legal advice. Many of these selections may be made jointly with special arrangements ensuring safe and secure service delivery coordinated through your legal or mediation counsel. Increased information and settlement sensitivity can decrease or eliminate conflict and promote your joint strategic plan in an efficient and effective manner.

Self Determination

We only get one history – that is the first opportunity to do it right. As a court-connected mediator and family arbitrator referred into dispute resolution at the final stage, I often witness people having gone “through the ringer” before coming to realize the merits of cooperative settlement in this final stage. By then, the harm has been done to their family resources and the conflict trauma is already tearing at them and the children. The old adage is that the secret of life is to play a bad hand well. We know that divorce wasn’t your original goal but now that it is here, you and your spouse are tasked to do the right thing. Your first steps are crucial. Settlement becomes a self–fulfilling prophecy. If this is going to happen right now, make it happen right. Sure, it takes some time to find yourself and embrace these higher functioning characteristics. Of course, it is hard work and an ever-challenging journey but with these developing attributes and your seven-point compass, you can choose dignity and respect and a better outcome for all. As you can see, the seven characteristics are really aspects of individual insight and emotional intelligence. These are your individual choices but you can help the family get on the right track with solid process planning with qualified professionals.

Nigel Macleod, B.Soc.Sc., LL.B., Ac CFM (OAFM), Adv.Pract. (ACR)(APRM)