Your Guide to Mediation and Family Law Property Settlements
When facing a breakdown in your relationship, thinking about the next steps to sort out your property and financial situation can be daunting.
In September 2021 the Federal Government reformed the family law jurisdiction in an attempt to improve the users’ experience. Part of the reforms include:
- requiring that all parties make a genuine effort to settle their property matters before getting into the Court system unless grounds of urgency or another exemption applies.
- It is now essential that wherever it is safe and appropriate to do so, parties attempt mediation as part of the early steps in determining an appropriate property settlement.
Confidentiality
Mediations are confidential and inadmissible. This means that the details of discussions and negotiations at mediation cannot be put before the Court.
Mediation Service Providers
There are many options available for mediation. These can include:
Both options listed above have advantages and disadvantages, and it might be necessary to explore both options.
Mediation through an NGO is generally conducted without the involvement of lawyers and it is often charged based on a party’s individual financial circumstances. Non-legally represented mediation can be a great starting point if you have a high level of financial knowledge, with a reasonable level of trust in one another and a relatively equal position of power.
You might wish to consider moving to lawyer-assisted mediation in circumstances where:
- you have tried non-legally assisted mediation without achieving a result;
- you feel that there is a power or knowledge differentiation between you;
- you have safety concerns;
- for any other reason you feel that you would benefit from having lawyers represent your interests in the mediation.
Mediation – What you need to know
No matter which type of mediation service you think is best for you, there are some key elements to get right, these include:
- You need to consider who should be involved in your mediation. Is it just you and your former partner? Are there other parties with a financial interest that should be involved?
- What practical facilities do you need for mediation? Can you be in the same room as the other party or parties, or do you need separate, private space where you can reflect on issues raised?
- It is essential for every person going into mediation to have a good understanding of all the assets, liabilities, and financial resources in each of their possession and or control.
Through the mediation process or beforehand, you should come up with an agreed value for each asset, liability, and financial resource. This means doing things like:
- obtaining appraisals for real property, or a licenced valuation where appropriate; obtaining valuations for business, trusts and other commercial entities, up to date bank statements, credit card statements, loan statements and share valuations;
- providing each other with tax returns for at least the year prior to separation and each yeah post-separation; and
- looking into any other matter that is relevant to the financial contributions made by each party to the mediation throughout the relationship and post-separation.
You should also consider:
- the contributions each person has made both financially and non-financially to the assets, liabilities, and financial resources of the property pool.
- what you and the others involved in mediation might need moving forward to support yourself/ themselves and any dependents such as children.
- if there are any issues that might be discussed that are non-negotiable for you, e.g., keeping a family heirloom or a family pet. You should also consider what matters about which you are willing to compromise.
- reflect on the reasons you want to finalise matters by agreement, which could include the expense of pursuing a property settlement through Court, the desire to maintain a positive relationship with an ex-partner who may also be a co-parent, the desire to maintain control of a financial settlement which would otherwise be determined by an independent third party and may result in an outcome that you feel is worse than what you could agree yourself, and a multitude of other reasons.
- think about and write down your best-case and your worst-case outcome in consideration of the matters set out above. This should be a confidential exercise conducted yourself or with your legal representation and told to no one else.
With the information set out above you will be in a good position to seek a resolution that is beneficial for everyone.
What Next?
Lindblom’s lawyers have experience in mediation in family law property settlements. If you have any questions about mediation, contact one of Lindblom’s lawyers’ family law team today. Lindbloms Lawyers can guide you through the mediation experience.