What is mediation, and should I enter a mediation process or not?
If you have recently separated from your partner, you may be advised to avoid costly and lengthy Court proceedings by attending upon a mediator to resolve the outstanding issues with their partner.
Mediation can be a quicker and more cost-effective way of resolving issues between separating partners, whether it be for property and/or children’s issues. If you are able to mediate a settlement with regard to property and children’s matters without the expense of Court proceedings then you should attempt to do so.
However, you should at least have the following information and discuss it with a family lawyer before you attend the mediation:
- What are the assets of the relationship and what is their approximate value?
- What are your expectations (or your partner’s expectations) in regard to how the property should be divided? This could be by percentage of the total value of the relationship assets or of allocation of individual assets to respective parties.
- Who will be the primary caregiver for the children and or whether or not you or your partner are seeking an equal time arrangement?
- What will be the arrangement for the payment of child support, if appropriate, and will it be determined by an assessment of the child support agency or an informal arrangement? Who will be paying for the private health cover or any other extra payments for the children?
- Are there any loans to third parties (e.g. parents that need to be repaid or taken into account when mediating the property settlement)?
- Is there any asset (e.g. a business or investment) that needs to be valued by the family accountant or a valuer because its value cannot be determined easily?
All of the above can be assessed by an experienced family lawyer, so you can get a good idea of what would be awarded to you in a hearing at the Family Court. Knowing this really helps you decide if your negotiations with your partner are fair.
If needed, your lawyer can also discuss the financial “pool” with your family accountant, or if you do not have an accountant he or she can direct you to an accountant who has experience in family law matters.
Friends and family will be of great support to you during this period of separation. However, the so-called legal advice from caring friends and family will often be erroneous, even if they have been through their own process, and can lead to serious unexpected financial consequences (e.g. capital gains tax, unpaid tax of the business and/or joint loans that have to be paid). Every situation is different and needs an experienced eye.
When should you not attempt mediation?
- Not without knowing your legal entitlements as a point to negotiate from.
- Not without proper and complete disclosure of information from your partner to your lawyer with regard to business assets, taxation liabilities, superannuation and value of assets – these are necessary to assess your likely entitlements.
- You may have a partner who pressuring you or is unwilling to negotiate in reasonable terms. In that case, mediation may not work, or leave you short-changed.
- You should not mediate simply because friends and family tell of horror stories about the Family Court, costs and delays. This includes other professionals, such as accountants and financial advisors.
Your lawyer can assist you in preparing for the mediation and advise what you would be entitled to with regard regarding to property and what would be the appropriate parenting orders given the age of your children.
If you mediate and enter into a Consent Order that is made by the Court it is very difficult to have those orders changed or set aside. It is far better to spend some money invest and in advice time prior to mediation to fully inform yourself and be prepared so the mediation can achieve a fair outcome.
At Manning Lawyers we endeavour to listen to our clients and offer pathways to resolution that suit their circumstances and preferences, whether it be through formal mediation, settlement between the separating parties using lawyers, or through a complete Court process. Wherever possible we try to settle matters out of Court.
Brendan Manning has a decades of experience assessing and advising people about their relationship breakdown and a Master of Commercial Law. Brendan has a well-developed understanding of commercial issues, including complex business structures such as companies, trusts and family businesses. This helps him to effectively gauge the assets of a relationship, perform investigative procedures where necessary, and negotiate settlements in very difficult situations. He is highly experienced in all types of parenting disputes and family violence. When a dispute must go to Court, Brendan is more than able to take the pressure off and represent you professionally and expertly.
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