Sweating the small stuff

In the aftermath of a relationship breakdown, negotiating about property or children with a former partner can be very challenging. It can be tricky to work out what is really important to you and then to communicate this to your former partner. After all the difficulties and effort it can be such a relief when you finally come to an agreement. But what happens after an agreement is signed? How does the way an agreement was reached affect how each party behaves afterward?

We wrote last month about Sid and Nancy who had a disagreement about the amount of child support Sid pays Nancy each week. Nancy thought that the child support payment should be calculated to include the hours the children spend at school as time with her. Sid thought that the time should be calculated based on the number of nights the children spent with each parent.

So what happens if Sid and Nancy decide not to use Collaboration as a way to resolve their differences? Instead they employ solicitors who negotiate based on the legal rights of each party. During their discussions, the threat of Court proceedings is raised several times by Sid’s solicitor and by Nancy’s. There is a lot of talk about legal precedents and what the law says, but at no point are Sid’s concerns about the recognition of his parenting and Nancy’s worries about paying her bills, actually addressed or even acknowledged. The relationship between Sid and Nancy becomes quite strained and they stop talking to each other about important matters in relation to the children.

Eventually, Sid and Nancy agree that Sid will pay an amount that is greater than he used to pay, but not as much as Nancy wanted. If Sid is careful, he can afford to pay this amount but he is still angry and feels resentful that Nancy has pushed him into this agreement. Nancy is relieved to have some extra money coming in to help her with her bills but is annoyed with Sid for arguing with her over the issue.

After a few months, Sid spends too much money on a new bike for their third child, Johnny. He will find it extremely difficult to make the increased child support payment. He thinks “Why should I be struggling to make ends meet when Nancy is living comfortably? I’m spending all this time and money with the kids, anyway”. Because of their lack of communication, Sid doesn’t fully understand the reasons that Nancy wanted the extra money. He breaches their agreement and doesn’t pay the amount due to Nancy that week. Nancy calls her solicitors, who ask the Child Support Agency to begin enforcement proceedings against Sid. A small dispute about the details of a child support calculation has escalated into a stressful ongoing quarrel and mounting legal fees.

A Collaborative negotiation might have avoided this outcome. It could have reminded Sid and Nancy that they have a lot of common ground, and addressed their personal concerns, instead of just discussing their legal position. After all, both of them just want what is best for their children. Importantly they could have had a co-parenting relationship which facilitated communication. That way they could have talked about the purchase of Johnny’s bike. They could have discussed whether it was a good idea to get that bike and spend that money and what changes to each household’s budget should be made to accommodate it.

Instead, because the real issues are never addressed, and both Sid and Nancy lost sight of their common interests during the legal manoeuvring, Sid feels no real commitment to the agreement. If both parties own the agreement and understand why they and the other party committed to the agreement, they continue to see the benefits of it, rather than just the downsides. The process that a couple take to reach an agreement can be just as important as the actual agreement reached.

For Out-of-Court Solutions contact Farrar Gesini Dunn.