No one likes things that are completely out of their control.
Especially things that they are paying for.
Particularly when the negotiations are going through a lawyer.
But unfortunately, this is how things can feel when going through a divorce.
You can feel like you have little to no say in what’s being done. Little to no certainty that you are going to come out the other side in one piece.
We understand that divorce and anxiety are close friends.
We don’t think that you should have to endure any more anxiety than necessary during the legal process.
So we have developed a simple auditing process that reduces anxiety called CONTROL.
Just like the name suggests, this simple auditing process helps you regain control and certainty in the legal aspects of your divorce; keeping your anxiety levels low.
CONTROL was developed on the same basis as the famous SMART criteria.
SMART is an acronym criteria used for setting goals. The objective of this criteria is to:
clarify your ideas, focus your efforts, use your time and resources productively, and increase your chances of achieving what you want in life. (Mind Tools)
Each letter in SMART is an “auditing step” to ensure your goals are clear and achievable.
The SMART audit forces us to develop goals that are:
Just like SMART, CONTROL is also an acronym.
Except, CONTROL is a seven step auditing process, not five. And it is specific to auditing legal advice. So that you get FASTER results.
Here are the ‘auditing points’ of the CONTROL process:
Each letter in the CONTROL acronym is used to check that every element of work performed for you is:
It ensures that you stay in control every step of the way.
It ensures that you get some certainty in a very uncertain situation.
The first step in the CONTROL audit is COST.
- 1Is the work costed?
- 2How much will the step cost?
If both these questions can be answered before work commences and this cost is set in stone, then you will remove a lot of uncertainty that surrounds your legal fees.
Fixed costs are costs that do not change.
By definition it is:
A set amount paid for work or a service, that does not change with the time the work takes or the amount the service is used (Lexicon, 2017).
Meaning no matter how long something takes to do or how much work has to be performed the cost agreed upon never changes. Not a dollar or even a cent more.
Fixed costs or fixed fees (as they may also be called) work by giving a fixed price for each stage of the legal process.
This fixed price is determined by assessing what work needs to be done based on the average cost of similar cases.
An added allowance will be made for possible risks that may be involved.
The final result should be a set fee that sits somewhere in the middle of the price range quoted by lawyers who charge by the hour.
Shelly needs to draft an affidavit (aka her version of events). Using lawyers on hourly rates the end cost of this can be anywhere from $200 all the way up to $2,000. Instead with a fixed fee, in Shelly’s situation, she was given a set price of $1,200.
This fixed fee is therefore very beneficial to Shelly. It gives her certainty about what her legal costs will be. It gives her control. It allows her to consider if the amount is right for her.
Shelly can budget for this amount; knowing that she will also be able to pay all of her other never-ending bills.
Accurate budgeting is not possible when you hire professionals who charge on an hourly basis.
Where cost is based on time.
Where you are paying for every minute that someone works – whether that’s:
When you have uncapped hourly legal rates you lose control of the cost you pay.
It’s just the same as hiring a painter to paint a room in your house;
So it begs the question - why would you hire a lawyer to do your divorce negotiations without knowing exactly how much it’s going to cost?
Often you are forced to hire lawyers who charge by the hour because it’s the only option.
But, now you know there is a better way.
Fixed fees at certain stages.
When people are offered the project management fixed fee option (the certain option), nine times out of ten, people will choose this over an hourly rate.
And that’s because:
The second step in the CONTROL audit is to assess whether the advice is OVERT - a big word that means clear.
But we couldn’t spell CONTROL with 2 C’s.
CONTROL couldn’t be spelled CCNTROL.
So we needed a word that meant clear.
A word beginning with O.
A word like overt. And here’s what it means:
open to view or knowledge; not concealed or secret” (Dictionary.com)
So as it turns out, it really means super clear!
As a result, for this step in the audit you should be checking that everything is super clear.
So that you completely understand what is going on.
So that the advice given cannot be interpreted in any other way.
So that everything is in plain English.
What does it mean to speak in plain English?
Well plain English is defined as:
Communication your audience can understand the first time they read or hear it (plainlanguage.gov).
It is clear, concise and well-organised. It is easy to read and understand.
It’s not the use of big, confusing words like “litigant”. If a word like “litigant” is needed it needs to be explained in a way in which you understand.
Litigant simply refers to an individual who is going to court.
By doing so, what is written, becomes easy to understand. As no one needs confusion.
Unfortunately, at times, professionals do get caught up in their own worlds.
They get so caught up that they don’t realise that their industry language isn’t understandable to everyday normal human beings.
It’s something we like to call the ‘Curse of Knowledge’: Knowing something particular to your place of work and then just assuming everyone else understands it as well as you.
The following graph shows this:
Which is what both the professional and client want; to be understood and to understand.
For most professionals they don’t even realise they are using language that is foreign to the client. But most of them are happy to clear things up if you are unsure or don’t understand.
You should never feel silly for asking for clarification.
After all it is your money you are spending. So you better be sure you know what the advice means.
Lawyers can avoid the 'Curse Of Knowledge' by using readability tools like Flesh Kincaid.
We use tools such as Flesh Kincaid to analyse our written communication. To see how easy it is to read and understand. To ensure our work can be understood by a high school student.
This is to make sure everything is clear and not overly complicated.
A professional should never make you feel stupid.
A professional will want you to be able to understand instantly so they can get your approval to keep things moving.
The professional who tries to purposely confuse you is not the person you want on your side.
They won’t give you clear answers on what they are doing.
Instead they will give you the run around. Where you pay a lot of money for nothing to be achieved.
Shelly wanted a lawyer to put together her affidavit (document outlining her version of events). Shelly went to a lawyer who said:
Shelly had no idea what was meant.
Shelly had no knowledge or experience with family law.
And Shelly is afraid to ask the lawyer what he means by this.
By not using plain English this lawyer has already begun to waste time and drag things out (making himself more money in the process).
This is because communication has to then go back and forth.
Back and forth.
And back and forth until Shelly understands.
Or until Shelly simply gives up and gives the go ahead to something she doesn’t understand. Until it’s too late. And she asks for it to be changed.
But it’s not all doom and gloom.
By hiring someone who uses plain English to explain each step clearly, from milestone to milestone, you will understand what is going on.
The third step in the CONTROL audit is to ensure the advice you receive is NEGOTIABLE.
In simple terms:
- 1Will the advice paint you into a corner?
- 2Has it left you some ‘wriggle room’ to negotiate a better outcome?
The critical skill of a lawyer is the ability to negotiate a good deal. To find the sweet spot in which both parties are willing to settle.
Negotiation is based on flexibility. Not painting you into a corner.
Therefore you need to ensure every move made by your legal professional contains all three negotiation positions:
- 1Opening position. What you demand. What you initially offer to settle for.
- 2Fall-back position. What you do (and offer) if the original offer fails (if your opening position is rejected).
- 3Walk away position. Otherwise known as the bottom line position. The worst possible outcome that you will accept. The last offer that you will settle for.
See the illustration below:
Negotiations Of buying & selling a house
These three positions in negotiations are known as the solutions that you want.
- 1You start with your opening offer. In this example above, this is the seller listing the house at $500,000 (number 1).
- 2The buyer will most likely reject this offer and offer their opening offer, something which could be in your walk away position. The point in which you will not sell. For this example this is $390,000 (number 2).
- 3In response to this much lower opening offer by the other side the seller will then make a counter offer. A fall-back position where you make another more desirable offer to the other side. In this case above this is a reduction in cost of the house; $450,000 (number 3).
- 4These counter offers go back and forth between the buyer and seller in the fall back position (number 4, 5 and 6).
- 5Back and forth.
- 6Back and forth.
- 7Until a settlement has been reached; both parties agree on a price of $425,000 (number 7 & 8).
If your lawyer has negotiable advice he will have further fall-back offers planned if that offer is yet again rejected (number 9 and 10).
These fall back offers will continue until they finally reach the clients bottom line (number 11 and 12).
A point in which they will walk away from negotiations if this final offer isn’t accepted.
A point in which the house will remain on the market if neither party will come above or below the others bottom line (above $400,000 or below $470,000).
The same should occur for your divorce.
You should know:
- 1What your opening offer will be,
- 2What your fall-back offers will be, and
- 3What your walk away point will be.
By knowing what your positions are and by anticipating what your spouse’s positions will be, you and your legal professional will be able to negotiate a successful settlement for you.
The other assets (shares and investment properties) Shelly and her ex-husband Peter had accumulated over their relationship did not matter as much to Shelly. Therefore she was willing to sacrifice on that.
Shelly also anticipated that Peter didn’t want her leaving with half or more of the investment assets. Because of this, she assumed that he would sacrifice on the house.
To ensure Shelly got exactly what she wanted her lawyer set the following three negotiation positions:
Based on these positions and an analysis of Shelly’s & Peter’s relationship, Shelly’s lawyer will negotiate with the other side.
This is to ensure Shelly isn’t pressured into a settlement she doesn’t want or deserve.
The lawyer who ensures his advice is negotiable by establishing these three positions will be a stronger negotiator because he is prepared for different situations.
For Shelly the resulting negotiation went like this:
- 1Shelly’s lawyer opened with Shelly’s opening offer: Willing to settle for the family home, 100% child custody and 80% of the assets (number 1 on the illustration).
- 2Peter’s lawyer then came back with their opening offer of wanting the same thing: Peter is willing to settle for the family home, 100% child custody and 80% of the assets (number 2).
- 3Both lawyers then went back and forth in the fall-back position, moving from the first fall back to the second and so on until both parties offers began to narrow into a desired result. (number 3, 4, 5 and 6).
- 7They finally reached a point in which Shelly and Peter were in agreement. A settlement was reached and finalised (number 7 & 8). For Shelly she received a successful result – 50% child custody, 100% ownership of the family home and 30% of their assets.
By having a legal professional who has these three negotiation positions, you won’t be painted into a corner.
You will have a plan for every scenario.
Know what to do if the other side does something.
Know where you stand, how much ‘wriggle room’ you have and at what point you walk away.
Ensuring you are never in a position where you are stuck.
The benefits of this are:
The fourth step in the CONTROL audit is to assess whether the advice is TIME BOUND - Does it have a deadline?
No one wants to drag things out forever and ever.
The same goes for your divorce.
Many people want things over as quickly as possible.
And who can blame them?
You can finally close that chapter of your life, get closure and look forward to a happier future.
And that’s why it’s so important to have someone whose work and tasks are time bound. Where deadlines are set and adhered to.
I’m sure you know that when you do not set deadlines (whether it be for yourself, your colleagues or whoever) things take much longer to complete.
Deadlines give us a goal.
Because when things aren’t completed by that specific deadline other things go wrong.
Either way it’s not something you want and as a result you tend to get things completed by the deadline.
On the other hand, if there isn’t any deadlines, people tend to fluff about and take their time. When there is no rush to be finished by a certain date and time, we tend to fill the space.Below is a GANTT chart that graphically represents a group of tasks required to build a house.
Down the left hand side are all the tasks that need to be completed.
Along the top are the dates in which each task will start and finish.
If the house is to be finished on time, all tasks must be individually completed by it's unique finish date (the deadline). If these individual deadlines aren’t met all of the following tasks are pushed back, further delaying the project.
For example, if the foundation is not finished by the 1st of July (A on the diagram) and instead takes until the 5th to be completed the walls will not be started until the 5th.. The roof won’t start until the 2nd of August rather than the 28th of July (B on the diagram) and so on for C, D, E, F, G and H. Which delays the completion of the house by 5 days.
This can be even more dramatic if all tasks do not meet deadlines.
This first deadline missed has a flow on effect creating further deadlines to be missed. The project is delayed by 35 days. That’s more than a month longer than it should have taken.
By paying attention to task deadlines we are ensuring that no leaks cause the ship to sink.
These leaks are stopped using project management systems such as a GANTT chart.
They are stopped as the system provides a visual reminder early in the project to get things back on track.
GANTT charts and other project management systems also allow you to keep track of your legal professional’s progress.
You will have a deadline in which you can hold them accountable to. This gives you control and certainty over the speed of the process.
Shelly's friend Phoebe had also recently been divorced. Knowing Shelly was going through a divorce of her own, Phoebe warned Shelly of her own horror story.
About how she never got a straight answer on when things would be started and finished.
How she never knew when things would be all over.
How she never had a deadline to hold her lawyer accountable to. Which removed Phoebe's control over her own matter.
Phoebe hadn't used a project management lawyer. She hadn't used a lawyer who worked to a deadline.
When it came time for Shelly to choose her own lawyer, Shelly made sure she hired a fixed fee lawyer who used a project management approach. Where all tasks were broken down with individual deadlines for each.
These deadlines meant that Shelly was kept in the loop through the whole process. She always knew how things were tracking and when things would be started and finished.
By ensuring that every piece of advice you receive is time bound you will:
The fifth step in the CONTROL audit is to assess whether the advice has been RISK ASSESSED.
- 1Have the risks associated with that piece of advice been identified?
- 2Have measures been put in place to control these risks?
Divorce is a tricky process.
A process that, at times, can be full of risk.
The legal world is a world dedicated to risk avoidance and risk removal. Lawyers are “risk professionals”. Their job is to establish certainty in outcomes. By removing the risk they improve the certainty.
Hiring a legal professional that knows how to manage risk is extremely important.
Managing risk is a step-by-step process. A step-by-step process which involves 4 critical steps.
The same 4 steps that are used by Safe Work Australia (2017):
The following illustration demonstrates this process.
Just like work hazards, many legal divorce hazards and risks can be easily identified and managed.
Organised legal professionals follow these 4 steps in managing risk.
- 1Identify Hazards
In order to control and manage risk first you must identify any situations or actions that could potentially harm your case. Situations or actions that could reduce your chances of receiving a successful outcome.
For family law matters hazards could be:
- 2Assess The Risks
Once all hazards have been identified the risks of these hazards must be assessed. This involves considering what could happen if this hazardous situation arises and the chances of it happening. This consideration can include questions like:
By assessing these potential risks, you are able to maintain control.
Maintain control as now you have identified and assessed these risks you can now put measures in place to control them.
Peter and Shelly are getting a divorce.
They have begun the process of splitting their assets in negotiations for a property settlement.
However, Peter has just told his lawyer that he already has a new partner.
Shelly does not know about Peter’s new partner.
The risks with Peter’s quick re-partnering is that Shelly may act irrationally. She may:
This could make negotiations extremely hard, dragging the out for much longer than anticipated.
- 3Control The Risks
You now know the hazards and the risks for the advice you have been given. However, knowing these isn’t enough, instead you also need to have controls in place.
Obviously the best way to control risk is to completely eliminate it, but at times this isn’t possible.
In cases where risk cannot be eliminated, then we must take actions to minimise this risk, to reduce its impact.
Some risk can be controlled with one simple action.
For others it may be a combination of several actions to provide the highest level of protection.
Either way what’s important is the fact that measures have been determined and implemented (in the most effective way for your circumstances).
Continuing from the example of Peter and Shelly above, Peter’s lawyer works with Peter to control these risks.
Peter's lawyer does so by:
By taking measures such as these Peter’s risk of an unsuccessful result and negotiations being dragged out is reduced.
This is because while Shelly is unaware of Peter’s new relationship she may be still willing to reach a fair settlement for both sides and end thing on good terms.
- 4Review Control Measures
The final step in the risk management process is checking that measures put in place to control any risks are working as planned.
By reviewing these control measures you are monitoring if these actions have been effective in eliminating/reducing risk.
You are also checking if any other hazards and risks have consequently arisen because of these control measures.
By reviewing your control measures this allows you to continue with the measures that are effectively working, revise those that aren’t and implement new actions where necessary.
For Peter this may be checking that:
Through using the right professional (a qualified lawyer) to apply these steps to assess and manage risk you are giving yourself the best chance of success.
The best chance at success as you have a qualified lawyer who has extensive experience and training in family law.
These experienced family lawyers have the best knowledge and ability to identify, assess and control risks.
You won’t be taken by surprise and you will be covered for any risks that do arise.
Ensuring that you aren’t left on the back foot.
Ensuring you stay in control despite the risks.
Giving you the following benefits:
The sixth step in the CONTROL audit is to assess whether the advice is OUTCOME ORIENTATED.
- 1Does each piece of advice have a goal?
- 2Does each piece of advice have a milestone it is trying to reach?
- 3Does each piece of advice work towards your desired end goal?
Every piece of advice and every element of work that is performed for you should work towards your desired end result. It should work towards a milestone that gets you one step closer to your end goal.
Divorce should be a milestone driven process. Start with your desired end result and break down the process into smaller milestones.
It’s just like driving from home to work.
You set your desired end result of wanting to get to work.
You map out how you are going to get there.
Divorce is like driving from home to work in city traffic, with traffic lights at nearly every intersection. It potentially can be a much harder and longer process as there are so many things that can hold you up.
Just the same as a commute, in divorce you too want to get to the end destination as quickly as possible.
No one wants a car trip to drag on forever and ever, just the same as no one want’s their divorce to drag on forever and ever.
To arrive as quickly as possible we need a ‘green light run’ all the way through.
For each traffic light to turn green or be green at the exact point in which we hit them.
For things to be completed by a certain point in the process so we can continue to the next milestone with no delays.
Each light is a destination. An outcome.
It is pretty clear if we are at the intersection. Or not.
The lights then give us the go ahead to get to the next set of lights. The next outcome.
You are the traffic controller. You decide at each intersection what to do. Should you progress on this route; or detour?
Knowing your objectives provides you with the ultimate control over your success.
Telling you “what” has been achieved.
Giving you a milestone based process.
Ensuring the lawyer gets every task completed in time so that you can give them the go ahead or put them on an alternate route.
By having an outcome oriented professional you have someone who is focused on what you want to accomplish.
You decide where you want the driver to go and when he can keep driving. The lawyer just makes sure they get to that next traffic light.
That next milestone.
That next outcome.
As fast as possible.
Ensuring that no unnecessary tasks that don’t need to be performed, aren’t.
Back to the previous example.
Shelly wanted to leave her toxic relationship with Peter.
She made a claim for:
Shelly’s lawyer was outcome oriented and mapped out a plan of the tasks and milestones they had to reach to get Shelly this outcome.
For Shelly this was:
- 1Identifying & valuing the net value of Shelly’s and Peter’s assets & debts.
- 2Evaluating the contributions that both Shelly and Peter made.
- 3Considering the future needs of Shelly, Peter and their children.
- 4Negotiate an agreement.
- 5Finalise in court.
The benefits of this approach are:
The final step in the CONTROL audit is to assess whether the advice is LEGAL!!
- 1Is the advice compliant with the law?
- 2Will it result in a breach?
Complying with the law prevents hold ups and unnecessary delays - that could give the other side an advantage.
Most legal non-compliance comes from rushing things, cutting corners, not paying enough attention.
It’s like driving 80km in a 50km zone in an attempt to get to your friends party.
A police man will pull you over, give you a ticket and make you arrive an hour late.
So now you have a $609 fine, 6 demerit points and have missed the food.
Something you could have avoided if you’d complied with the road rules and driven to the speed limit.
The same goes for family law matters.
If you don’t follow the rules and aren’t compliant with the law you will find yourself in a worse position.
You may be disadvantaged with penalties such as:
But there are ways in which you can ensure that you remain compliant with Australia’s family law.
- 1Read, study and understand:
Which can be found on the Family Court of Australia's website.
- 2Hire a qualified legal professional on a fixed fee, fixed event basis who has studied and practiced these materials for at least 6 years. These include:
These professionals are the only people who are qualified and insured to give you correct legal advice.
You can check if the professional you are wanting to hire is qualified in Queensland by searching them on the Queensland Law Society website. Or by getting in contact with the Queensland Law Society directly (for Queensland only).
People you should NOT seek legal advice off are:
Schooling yourself up on volumes and volumes of ‘black letter’ law might not cost you money.
But it does cost you time.
It takes a lawyer about 6 years after a university degree to become fully competent and capable of running a complex matter entirely on their own.
It’s probably best to buy that experience.
What’s more if you do decide to hire a qualified legal professional you are insured (by professional indemnity insurance) for every piece of advice they give.
Insured so that you can be fairly compensated for any incorrect advice given.
Insured so that you are covered and not held accountable for any actions they take that aren’t compliant.
If Shelly's lawyer misses a critical limitation date during her property and parenting settlement and it costs Shelly money.
Shelly can sue her lawyer’s insurer for her losses.
The benefits of this are that:
A party may apply for an interim, procedural, ancillary or other incidental order in relation to a cause of action only if: (a) that party has made an application for final orders in that cause of action; and (b) final orders have not been made on that application. (Family Court of Australia)