Marino Law | Gold Coast Law Firm

Mediation in property settlement disputes – Why it is important and how to make it work

MediationAt Marino Law, we are unashamedly advocates of early alternative dispute resolution in property settlement disputes.  Whilst mediation is mandatory after the commencement of proceedings in Court, we often recommend to our clients that we undertake mediation prior to commencing proceedings.  Adopting this course of action enables matters to be resolved at the earliest possible times and in terms that our clients can control, rather than being imposed upon them by a judicial officer.

Why should you mediate your dispute?

Agreeing to mediate enables parties to have the assistance of a neutral and professional third party in discussing and agreeing upon their entitlements.  Parties lawyers are advocates for their client’s position and accordingly it is often the case that a third party is needed to suggest appropriate outcomes, such that both parties do not feel that they are “giving in” to their former spouse or partner’s position.

Mediation is also confidential or “without prejudice” which enables parties to have an air of openness and freedom in their discussions, which may not always be present in solicitor’s correspondence.

The mediation process is structured and controlled, enabling both parties to have control in their decision making, thereby saving time, financial and emotional costs and stress.

Preparing for your mediation

In order to maximise the opportunity for resolution at mediation, it is important to prepare appropriately for it.   Our top tips for preparation for mediation are:

  1. Obtain legal advice from an experienced Family Law solicitor

It is important that you seek and obtain advice on your rights and entitlements, prior to entering into discussions about resolution of your matter.

Whilst there is substantial information available via websites and support groups, this advice is often general in nature and therefore cannot be relied upon to make informed decisions about resolution of your matter.

An experienced family law solicitor will take the time to obtain your instructions about many and varied current and historical factual matters, sufficient to provide you with advice on likely outcomes.  An experienced family law solicitor will have a thorough understanding of the Family Law Act and the case authorities to enable them to guide you on proportionate outcomes and how practically to give effect to your division of property.  Agreeing on a percentage is but one of the considerations in resolving your matter.

Despite common belief, family law is complex, with each matter requiring individual consideration.  There is no standard formula for the division of assets and no set percentage based on length of relationship or other matters.

Marino Law’s family law team comprises experienced family lawyers who are capable of guiding you in the right direction with your outcome.

  1. Know your priorities

Know what you want to achieve from your mediation.  Obviously the division of your assets and finality are priorities, but what in particular do you wish to achieve?

For example, is there a specific asset you wish to retain?  Why is this important to you?

Knowing your “why” will assist all parties involved in the mediation to focus on an outcome that will, if possible enable you to achieve your priorities.

  1. Be ready for curve balls

Try to think about your former partner’s “why” to prepare for countering their position.

Write down all possible points of argument against your position.  In effect play the “devil’s advocate” for your own case. Know what you are prepared to concede and what is not important.

Adopting this practice will enable you to come to the mediation prepared for all possible avenues of discussion and to ensure that emotionally, you are not shocked or surprised by the position adopted by the other party.

  1. Understand that it will be an emotional process

Whilst the mediation will be focused on resolution of your financial relationship with your former partner or spouse, there is no denying that you will feel emotions throughout the day.

There will be things said that you do not agree with.  There will be things said that hurt your feelings, make you angry and upset.

These emotions are perfectly fine and a normal part of the cycle of grief attaching to the end of a relationship and finding independence.

It is important that you seek professional assistance if you consider your emotions are getting the better of you.  As your lawyer, we are not qualified to be a counsellor or therapist and whilst we will understand your emotions and concerns, it is important that we can provide you with unemotional legal advice.

You ought to consider taking a support person with you on the day of mediation to ensure that you have assistance if you feel emotional or vulnerable.

You have reached an agreement at mediation – where to from there?

If you have reached an agreement during the course of your mediation, it is important that you are 100% clear on what you are agreeing to, before leaving for the day.  If you are unsure, then you need to ask the questions, before any documents are signed.

An agreement reached at mediation, on its own, is not an enforceable agreement to distribute your assets.  It then needs to be formalised appropriately.  The methods by which the agreement can be formalised are:

  1. Binding Financial Agreement; or
  2. Consent Orders.

The appropriate formalisation method will depend on the terms of the agreement reached.  Again, this is why it is important to obtain experienced legal advice and representation for your mediation process.  Each of the formalisation methods has strict legal requirements and considerations.

Our Accredited Specialist lead team of family lawyers can provide you with advice prior to your mediation, representation at mediation and assistance in formalising the agreement reached.  We provide cost effective and resolution focused advice and representation to ensure that you achieve the best possible outcome at the earliest possible time.

No matter the status of your property settlement dispute (or any family law issues) contact Marino Law on 55260157 to make an appointment for a consultation.

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