4th May 2017

Hard or Soft exit - the only options for separation?

You only need to open a newspaper or switch on the radio at the moment to be greeted by talk of Brexit, with leaks and soundbites from various politicians and commentators. 

Among them, the latest stories centre around talk of the EU demanding “€100billion” as the price of exit. As a family lawyer, such claims resonate with me as, along with many of the claims and counter claims, this can sound very similar to clients who are going through separation or divorce – “I’ll make 'em pay”…

The claim from both sides of the Brexit debate is that Britain has a choice between a 'hard' and a 'soft' exit and, whilst there are some calmer voices, these are often at risk of being drowned out by the louder more strident demands of one side or the other. Some politicians are reacting emotionally and, it seems to me, speaking before they think, with little thought of the consequences. Particularly around what a hard split may bring and the shape of relationships in the future. This is beginning to sound more and more like a divorce or separation….

At the outset of any dispute, those involved need to consider the best way of resolving it. It is generally better if a deep breath is taken before speaking and at least some consideration given to the best way of approaching the problem. Whether ending a personal, commercial or international relationship, there are a number of options to consider.

Option One: Fight / litigate

Rooted in the notion of being "bloody difficult" this approach speaks for itself. Both parties go at the matter aggressively, vigorously defending their stance and only begrudgingly conceding ground. The outcome of this course of action is uncertain and so often sees relationships destroyed and considerable bitterness on both sides. 

Option Two: Negotiate

If parties enter into negotiations in good faith and are sensible, constructive and prepared to make some concessions, then negotiations can be an effective way to ensure that an eventual settlement can be reached. There is a risk however that some people negotiate in bad faith and manipulatively, which can give a degree of uncertainty to any final resolution.

Option Three: Mediate

Working with a third party to facilitate the process, those involved try to resolve their difficulties and find a solution. This can still be difficult as the parties are expected to negotiate without outside advice and the process can occasionally be “hi-jacked”. It relies on an individual's own ability to negotiate but does mean that they keep full control of what is going on. It is, however fair to say that generally mediation can lead to a good outcome.

Option Four: Collaborate

In a divorce or separation, collaboration means both sides entering into a formal commitment and working with advisors to resolve matters in a positive, non litigious manner. Both parties know that the other has entered into the agreement constructively and is committed to the process and are looking to achieve a settlement. Whilst they may want a different settlement they also know that both parties are committed to listen and, when appropriate, compromise. They keep control of what is going on and it is very much the client’s process. This tends to lead to the best outcomes with the least bitterness all round - an essential attribute where future contact is important and very few collaborative cases fail.

Laying out options there is a clear message here to both the couples looking to separate and political leaders entering into the intricate process of negotiating the United Kingdom's exit from the European Union - don’t get drawn into a battle. 

It is key to think long and hard before the process begins, look at preferred outcomes, long term objectives and more importantly, consider future relationships. For nation states this will impact on trade, profitability, immigration and health of the economy. For individuals this will impact on stress, the ability to move on and the impact on any children that are involved.

So, as we consider a hard or soft Brexit - it's time to ask, are these the only options?

Berwins’ Stephen Root has over 30 years’ experience in family lawyer and consistently receives high praise in both industry guides and client recommendations.  

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