Have you heard the term mediation before, and wondered what it involves?
Maybe you have received a proposal from your former partner or their lawyer to attend a mediation?
If this resonates with you, then please keep on reading to find out more!
So, What Is A Mediation?
A mediation (also known as dispute resolution) is a method to resolve your matter with the assistance of a third party who is ordinarily an experienced family lawyer or barrister.
Mediation is the go-to method for resolving family law separations. A mediation must be undertaken by a separated couple prior to the commencement of Court Litigation in parenting or property matters unless there are urgent circumstances or issues regarding your safety. The Court may also order that you attend a mediation during Court Litigation prior to setting your matter down for a final hearing before a Judge.
Why Prepare For Mediation?
To ensure you are giving yourself the best possible opportunity to resolve your matter, it is beneficial to attend your mediation fully prepared. A mediation may be the last opportunity you and your former partner have to resolve your matter without the significant emotional and financial expenses of proceeding to a final hearing, at which time the decision will be taken out of your hands and made by a Judge.
Top 4 Tips To Prepare For A Mediation
The Court has set out a number of steps that must be completed prior to a mediation. We have summarised those as follows:
– Providing disclosure;
– Obtaining valuations;
– Knowing the issues; and
– Setting out your proposal / orders sought.
Disclosure
Under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, both parties have an obligation to provide full and frank disclosure of their financial circumstances in a timely manner. This is to assist determine the total net assets that are available for division between you and your former partner.
These documents include (but are not limited to) the following documents:
– Three most recent tax returns;
– Three most recent notice of assessment;
– Bank statements for the last 12 months, or longer if separation occurred some time ago;
– Three most recent payslips;
– A completed superannuation information form;
– For any self managed super fund, any trust deed and a copy of the three most recent financial statements;
– For a business, a copy of the last 4 business activity statements lodged;
– A copy of the last three most recent financial statements for any partnership, trust or company;
– Your estimate of the property to be divided between you (such as property, household contents and motor vehicles); and
– Any other documents that are relevant to an issue in dispute.
Valuations
After the above has taken place, there may be some items where the values cannot be agreed between you and your former partner (such as the value of real property, businesses, motor vehicles, self-managed super funds or furniture and contents).
If this is the case, it may be that you need to have an asset valued. These valuations are ordinarily obtained by a single expert who is jointly engaged by both parties, with the assistance of their respective lawyers, and are received well in advance of the mediation.
Knowing the issues
Although a mediation may be set down for half a day or a full day which sounds like ample time to discuss and resolve your matter – the mediation can go very quickly.
It is therefore helpful to identify the matters in dispute and the issues which may be preventing your matter from resolving.
This may include:
– The length of the relationship;
– The property that is available to be divided between you and your former partner and whether, after disclosure and valuations have been obtained, there is still a disagreement on any items in the balance sheet;
– Each person’s contributions to the property pool (including financial, non financial and parenting contributions);
– Whether either person has any future needs (such as health issues, income earning disparity, capacity to work or primary care of the children).
The Court as well as most mediators will require the parties attending mediation to complete a Case Outline document which helpfully summarises the above issues.
Your proposal
Once an agreement has been reached at the mediation, it will need to be documented into a legally binding document – usually Consent Orders.
It is therefore helpful to attend the mediation with an experienced family lawyer and a proposed order sought, which sets out the orders you are seeking on a final basis. The preparation of this document can significantly reduce the time that you are spending at a mediation drafting this document and ordinarily would only require some minor amendments before it can be signed by each of you on the day and reduces your interactions with your former partner after the mediation.
We would strongly recommend you engage a lawyer to assist you to prepare your case for the mediation and to give you the best possible opportunity to resolve your matter.
Would You Like Further Information?
If you would like further information on any family law matters, please book your free consult with Tegan.
By Tegan Martens
Director & Principal Lawyer
Martens Legal
DISCLAIMER:
The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. You should seek appropriate professional advice based upon your particular circumstances.
