If both parties want a settlement without a judge deciding for them, they must find a way to agree.
First, it is helpful to know exactly what issues are agreed and which are not. For example, the parties may agree to share parenting on a week-on week-off basis, but they do not agree on the division of assets.
Second, it is crucial to have all of the relevant information before they can even begin discussing how to resolve the outstanding issues. For example, if the pot of family property includes a house and shares in a company, the value of the house and the shares needs to be determined before the parties can agree that one person gets the house and the other gets the shares.
Third, once all the relevant information has been received, the parties must decide if they want to approach settlement by a “rights-based” approach or an “interest-based” approach. A “rights-based” approach focuses on the legal rights of the parties and they approach the negotiations keeping in mind what they anticipate a judge might order. If they think they have a good chance of success at trial, they will likely “dig in”. Alternatively, if they sense they have a poor chance at trial, they may more readily “give in” to the other party’s demands.
Unfortunately, when parties negotiate directly they may have a mistaken understanding of the possible outcomes. They may negotiate poorly as a result. Also, when negotiating, parties often overlook or underestimate costs of achieving their outcome at trial.
An “interest-based” approach focuses on the underlying needs or interests of the parties and encourages a broader range of solutions to the dispute instead of purely legal interests. This approach can yield an outcome that satisfies the parties, but may not match legal standards or expectations.