If you ask a family lawyer what will happen in court in any given situation, the most common response you will hear is “it depends”. That may be frustrating, but there is no way around it. While a lawyer can, and will, provide possible outcomes and the likelihood of obtaining those outcomes, going to court is putting the decision solely in the hands of a judge. And while the judge will rely on the law, and be fair, there is so much “grey” in the law that an honest lawyer cannot make promises. They can tell you the options, the risks, the possible, and maybe even the likely, outcomes, but there are no guarantees.
This provides a huge incentive for clients to determine their own outcomes through mediated or negotiated agreements. This does not mean there are no guidelines as to what a fair agreement might look like. Lawyers cannot — or at least should not — draft or have their clients sign agreements that are significantly unfair to one of the parties and such an agreement could easily be set aside by a court down the road. The shadow of the law remains and informs the negotiating field. The outline is drawn, the frame is set, the goal posts are respected.
A negotiated agreement can be more creative than a court would likely order. While a court can make orders regarding custody, child support, asset division and other family law issues, the parties themselves can go beyond that and, for example, make decisions about how to share the costs, and custody, of a family pet, or how to share or co-own the family home.
A court is also bound by certain guidelines regarding amounts of spousal support one spouse may be required to pay to the other and the division of property. You and your ex-spouse, however, may find an alternative solution that includes more or less support in exchange for other considerations, such as an unequal division of property that may be of little financial value, but of great emotional value.
Courts are bound by law and precedent. Negotiated agreements are limited only by the parties. And that’s where knowing the “zone of possible agreement” or ZOPA comes into play. ZOPA exists where there is overlap between what the parties want, and what they are willing to live with. To find the ZOPA means looking at the interests of both parties and the options available. Dispute resolution professionals, such as mediators and collaborative lawyers, can help you discover and generate your unique ZOPA and then help find where your ZOPA overlaps with that of your ex-spouse’s so you can find common ground based on each other’s needs and interests.
For people who want choice and freedom to control their own outcome, this option is to be celebrated. Creativity can be engaged, your concerns addressed and you and your ex-spouse’s interests met, allowing the whole family to move forward towards health and healing.
This is not easy work but with the help of dispute resolution professionals, you and your ex-spouse can arrive at an agreement uniquely suited to your family, and your situation, designed exclusively by those who know you best – YOU!
At Connect Family Mediation, we are committed to assisting clients by connecting them with a broad community of experts and peers and offering them a choice in how their legal issues are resolved. By investing more humanity into our clients’ experience, we empower them to move forward. If you would like more information, please contact us.