Generally, settlement is the best the way to address problems associated with the breakdown of a marriage. When parties can agree on the terms of their separation through mediation or other means, the result is that they avoid having to go to court.

Parties who successfully negotiate a fair settlement enjoy the resulting workable agreement that meets both of their subjective needs. When you have to litigate issues such as property division and custody in court, you rely on the judge to determine a fair solution, which can sometimes leave one party feeling as though they lost, so to speak.

While settlement is highly encouraged by lawyers, judges, and family counsellors, there are certain impediments that can make reaching a fair settlement impossible. Awareness and acknowledgement of these hurdles is the first step in preventing them from ruining your attempts to negotiate a fair settlement.

1 – Emotional Barriers

It is far too easy to let our emotions consume us when it comes to matters affecting the heart. The breakdown of a relationship can set you on an erratic course fuelled by guilt, hatred, anger, heartbreak, or any number of emotions. Our emotions are the most common thing that frustrate settlement attempts. Here are a few tips you can use to make sure your emotional crisis won’t ruin your chance at reaching an amicable settlement.

Take time to cool off. Often when parties realize that the marriage has failed they become eager to finalize the separation, move on, and start anew. Clients frequently push us to get things done ASAP because they are anxious to move on. This is not always the best course of action. Even if you think you are acting clearly and rationally, chances are your wounds are still fresh and your emotions are clouding your vision. If you show up at a mediation session feeling angry, resentful, guilty, rejected, desolate, mistrustful, sad, nostalgic or any other number of emotions it can completely ruin your chances of reaching a settlement. Don’t be so quick to move the paperwork and give your heart some time to heal first.

See a Counsellor or Therapist. You may think that you don’t need any help, and that counselling isn’t for you. Perhaps you think counselling is only for couples trying to reconcile. There are many reasons you might rationalize not seeking help during this time. The bottom line is that counselling can help. These professionals can assist you in dealing with your emotions, discuss how to help your children, and even help you make budgetary decisions as a newly single person.

2 – “Stuck Spots” 

Another common reason why people are unable to reach a settlement is because parties sometimes reach an impasse on a specific issue and are unable or unwilling to compromise. Often these “stuck spots” are not actually irreconcilable differences, but simply temporary failures that, for whatever reason, parties cannot seem to move past them. The best way to avoid ruining a settlement this way is to be willing to compromise.

Approach your settlement with an open mind. Leave the emotional baggage at the door and be willing to compromise. If you reach a “stuck spot” and your negotiations fail because you can’t agree on something relatively petty (like who gets the master bedroom furniture), then you are going to be forced to head to court. Your dirty laundry will be aired in public and you will be relying on a judge to make decisions for you.

Also as you approach settlement negotiations remember that you will not win every battle. You may think you should get the matrimonial home, primary custody, child support, spousal support, possession of the vehicles, and all the money in savings, but you simply will get everything that you want.

3 – Imbalance of Power

It is very rare for couples to just fall out of love and mutually agree that they should end the marriage amicably. More often than not, the reason the marriage is ending is more complicated. Maybe someone cheated, or lied about assets, or you can’t agree on child rearing issues. The breakdown of a marriage can be contentious, and depending on the circumstances it can result in an imbalance of power. So how do you work around this imbalance of power?

Sometimes the imbalance is so strong it is impossible to overcome this obstacle. If the reason the marriage failed can be placed squarely on one person’s shoulders, it can be difficult to solve the imbalance. The party who cheated will feel guilty and the party who was cheated on will feel that because of the adultery they have the upper hand. When the imbalance of power is irreconcilable, the mediator may find it impossible to work though as one party will feel as though the mediator is favouring one spouse over the other.

4 – War Games

You clean out the bank account. Your spouse then cancels your credit card. You respond by letting the hydro bill lapse. Your spouse then responds by not letting you see the children. So naturally you tell the children how awful your spouse is when you get in contact with them. It may start off innocent enough but war games frequently rear their ugly head when it comes to settling marital disputes. Otherwise rational people get so consumed by their emotions that they act in a totally irrational manner. There is only one way to work around this obstacle.

Call a truce. These malicious games accomplish nothing. No matter how angry or hurt you are, you must not head down this path or you will find yourself in court, trying to explain to a judge why you have resorted to such childish games. The judge will not be amused by your justifications for doing things that you know are uncalled for and inappropriate. A judge may even award costs agains you as a result of your unwillingness to cooperate in good faith.

Before you attempt settlement negotiations, familiarize yourself with these four pitfalls and work hard to remove them from your situation. Often this is easier said than done, but ultimately you will be much happier with a fairly negotiated settlement with which you can both live.