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Jul 21

What to Expect At a Family Law Mediation for Property Division

By Mediations Australia Mediation, Property Settlement

Family Law Mediation for Property Division

Working out what to do with property assets when a couple decides to separate can be a difficult, stressful process, and many are turning to family law mediation for property division as an alternative. And it’s not made easier by the cost and inevitable delays involved if you need to go to court to have orders made about how everything should be divided.

That’s where mediation offers a compelling alternative. This dispute resolution method provides a significantly cheaper, faster and generally less stressful means of resolving a family dispute about property, avoiding the need to go to court. In contrast to the adversarial nature of the court process, mediation emphasises collaboration and cooperation between both parties to reach a resolution you can both live with, and thereby move forward with your lives.

Here we’ll look at how the mediation process works when it comes to dividing property assets between a separating couple. You should always seek independent legal advice about whether mediation is suitable for your circumstances to resolve a family property dispute.

How the mediation process is conducted

When a couple separates and there are children from the relationship, Family Dispute Resolution (FDR) to discuss the living and care arrangements for the children is a compulsory pre-court process under the Family Law Act 1975. This is not the case where only property orders need to be decided, but for the reasons mentioned above mediation remains a useful means to achieve property settlement to avoid going to court.

Mediation is conducted by a trained, neutral mediator whose role is to assist you and your ex-partner find a workable solution to your property dispute. The mediator facilitates a calm, civil and collaborative environment so that both parties can ask questions, raise issues and negotiate a split of real estate, superannuation, bank accounts and other financial assets accumulated during the relationship.

The process is generally conducted in a suitably appointed meeting room at a mutually agreed location at a mutually agreed time. Ideally, the venue has two ‘breakout’ rooms to which each party can retire to discuss the issues with their legal representative (if present) or to allow the mediator to conduct a ‘shuttle’ negotiation between both parties to achieve a resolution. Mediation may achieve a settlement of the issues between the parties in one session, or a number.

The mediator does not decide any of the issues involved in the property matter, nor offer legal advice. They are there solely to provide a structure within which both parties can discuss their issues in an orderly, civil fashion with a view to a possible agreement.

Preparation: A successful mediation requires some preparation, particularly in regards to supporting material. Documents such as mortgage agreements, land titles, vehicle registrations, bank loans, overdraft facilities, credit card statements, superannuation statements and business documents may all be necessary.

The purpose of collating these documents is to allow you to identify and confirm the assets each party held before the marriage or relationship, which ones were accumulated during the relationship, and whether any assets were acquired in the period after divorce or separation. Your legal representative can help with this process.

The role of a legal professional in mediation

It should be noted that while you can have a legal representative present at a mediation, unlike in court lawyers do not lead the contribution of each party. Instead, your lawyer can be present to offer support and advice on your legal position at the appropriate time. Mediation is primarily designed to empower you and your ex to form your own negotiated settlement of property matters.

The reason you should speak with a legal professional with expertise in family law matters before entering into mediation is that they can provide you with an understanding of how assets are distributed according to the Family Law Act 1975. In doing so they can give you an idea of what a settlement outcome might look like if you progressed the matter to the Family Court. Knowing this information will often give both parties additional motivation to resolve through the mediation process.

Hopefully, an agreement on how to divide the property assets can be reached through mediation. If so, the mediator will record the details of the agreement in a document. To make this agreement legally binding and enforceable against both parties, however, a binding financial agreement (BFA) or Consent Orders are required. Your legal representative will be invaluable in this process.

BFAs can be made at any time during a relationship – including as a result of mediation after a separation or divorce – and detail how assets and money are to be divided, and each party is to be maintained when the relationship ends. A BFA is only legally binding and enforceable where each party has received independent legal advice and the agreement has been signed by both parties and their legal representatives.

A BFA will be unenforceable if, in its formation, there is dishonesty; the agreement cannot be practically carried out; the care and welfare of children are affected, or; if there was unethical or unfair behaviour by one of the parties.

Consent Orders are the Family Court’s formalisation of an agreement between a couple. An agreement reached by two people through mediation, for instance, can be formatted as Draft Consent Orders to be filed with the Family Court. The Court reviews the Orders based on whether they are ‘just and equitable’ to both parties and, if so, confirms the Consent Orders to make them legally enforceable. The just and equitable requirement constitutes a significant difference between Consent Orders and a BFA.

Let us help you

Mediations Australia can help you through all stages of the process, including advising on the appropriateness of mediation for your property matter, helping you negotiate with the other party, advising on your likely options with regards to family law medation for property division and formalising any agreement you may reach.

Contact us for Family law mediation today for sound, practical advice to negotiating a property settlement that is just and equitable.

Jul 19

What Is Included in a Matrimonial Property Pool?

By Mediations Australia Property Settlement Dispute

Coming to a property settlement that meets the satisfaction of both parties is often the hardest part of a divorce.

While it’s a necessary process so that you can both move on with your lives, working out the ‘pool’ of assets that need to be divided can be a complex process. Is it only the assets you bought together? What happens where you held an asset in your name only throughout the period of the relationship? What about any assets accrued after the relationship broke down?

We’ll attempt to answer some of these questions in this article but if you have similar questions as you face the unfortunate prospect of divorce, seek the advice and guidance of Mediations Australia. We will help clarify the issues for you so that you enter the property settlement process understanding which assets from the relationship are part of the negotiations.

Working out the property pool

Dividing assets in a family law property settlement is governed by the Family Law Act 1975 (‘the Act’). The law makes clear that assets can be considered part of the total property pool including assets held by both parties to the marriage as well as those held in either party’s name. The assets to be considered are those held at the time of the separation unless one of these assets was also used to create a new asset after the parties separated.

Typical assets assessed during property settlement as a result of separation and divorce include the home the ex-couple lived in, any investment properties either or both owned, cars, share portfolios or other investments, savings accounts, debts and superannuation.

Superannuation: Superannuation can be treated in different ways by the Family Court as part of a property settlement. The party who has contributed to – and stands to benefit from – the fund might be allowed to retain that benefit but the amount their ex-spouse may have been entitled to in a split of the fund is recognised by an increased share of other assets (such as sale proceeds from the former matrimonial home).

In other situations, one party’s super fund may be the subject of a splitting order where its value is divided between the ex-partners at an agreed percentage or a ‘flagging order’ where the non-member spouse can access a share of the fund once eligible.

Trusts: If one party to the marriage held assets within a family trust, the Court has wide discretion as to whether these should be included in the property pool. The exercise of this discretion will be assessed on a number of factors, including the level of effective control one party has over distributions from the trust.
The court will consider a range of other factors, too, including:

the terms of the trust;
the identity of the trustees and beneficiaries;
how assets within the trust were acquired and financed;
historical transactions and distributions from the trust;
income created from trust assets, and how this is distributed;
income distributed since the separation.

Inheritances: Where one party to the marriage inherits money or other assets as a beneficiary from an estate when they receive the inheritance will usually be a determining factor as to whether it will be considered as marital property. If the inheritance is received during the marriage and spent on assets or other things such as home renovations that are shared by the couple, it will likely be regarded as a contribution to the marriage.

An inheritance received during the break-up of a marriage, however, or after separation, may not be considered as part of the property settlement but could still be accounted for in working out the future needs of each party because it is a financial resource available to the beneficiary of the inheritance.

While the Court generally favours a ‘global’ approach in working out the matrimonial property pool – taking account of all assets held jointly and separately by the parties to the marriage – it can in some cases adopt an asset-by-asset or ‘two pool’ approach. This may happen where inheritance is received by one spouse late in the marriage, or after separation; where the marriage is brief, or; where one partner has a significant amount of superannuation and the other does not. The asset-by-asset approach necessarily increases the complexity and time involved in reaching a settlement, which makes it a less preferred method.

What factors does the court consider in dividing the property pool?

Under the Act, the Court must determine what is fair and reasonable to both parties given all of the circumstances. This assessment proceeds by first working out the value of the total assets, minus any outstanding liabilities. The Court then considers:

the direct financial contributions each party made to the marriage, such as wage and salary earnings;
any indirect financial contributions by each party, such as gifts and inheritances;
the non-financial contributions to the marriage, such as caring for children and homemaking, and;
future requirements in light of each party’s age, health, financial resources, care of children and ability to earn (including the effect of a property settlement order on each party’s earning capacity).

Time limits and legal advice

Once a divorce is finalised the parties have 12 months in which to seek an order from the Court regarding property settlement, otherwise, they must seek the Court’s permission to bring an application.

You may, of course, reach an out-of-court agreement about the assets from the marriage with your ex-spouse via mediation or other means and have the Court make the agreement legally enforceable through consent orders.

Whichever course you prefer, a property settlement provides some finality and closure to the relationship, leading to the peace of mind to enter a new part of your life.

To reduce the time and stress involved in coming to a property settlement with your ex, consult with Mediations Australia and we will guide you to the best possible result in your circumstances.

Talk to us Family law Mediation today at Mediations Australia. We can connect you to the best mediator in most major cities in Australia including Canberra, Perth, Adelaide, Melbourne and etc.

Jul 16

How Are Contributions Assessed in Family Law Matters?

By Mediations Australia Family Law

In the sad event that marriage or de facto relationship comes to an end, one of the most contentious areas when it comes to the disentangling of two lives is the property settlement.

In particular, the issue of contributions by each party to the relationship can become a common sticking point in any division of assets and liabilities. Contributions can consist of both financial and non-financial inputs into the former union.

There is no set formula for assessing these contributions – each case must be assessed on its unique circumstances to achieve a just and equitable division of property between the parties.

This article provides some more detail on how contributions in a relationship are assessed by a court but if you are at the stage where a property settlement is required to properly end a former relationship, contact Mediations Australia as soon as possible.

More detail on contributions

As we’ve mentioned, contributions considered in an asset pool as part of a property settlement can be both financial and non-financial.

Financial contributions: In a relationship, these may be direct or indirect in the acquisition, conservation or improvement of any property of the parties. Financial contributions before, during and after the marriage or relationship may be considered.

One party may have property when they enter the relationship, for example. Whether this property becomes part of the asset pool to be divided in a property settlement will depend on how the property is used during the relationship and what contributions to the property the other party makes.

During the marriage, an inheritance received by one spouse, for example, will generally be considered part of the asset pool. As will career assets such as income, superannuation, long-service leave or a redundancy payment, as well as shareholdings.

In relation to property acquired after a separation, the interest of the ex-partner who owns the property is balanced against the other partner’s contribution to it before deciding whether it is added to the asset pool. Another method of assessment takes a broader approach and looks at all contributions made by the ex-partner (the one who doesn’t own the property) to common matters between the parties.

Under section 79(4)(a) of the Family Law Act 1975, the court must assess both direct and indirect financial contributions. An example of a direct contribution is a lump sum paid against a mortgage, while an example of an indirect contribution is the use of earnings to meet household expenses. The court often deals with the situation where one party to the relationship pays the mortgage and the other meets household expenses from their earnings, complicating the assessment of how much each party contributed to the acquisition, conservation or improvement of a property.

Non-financial contributions: Examples of these contributions include where one party to the relationship has improved the family home by using their own labour (renovating, painting, gardening, landscaping, e.g.), as well as their contributions as a parent and a homemaker.

These have come to be seen as no less important than financial contributions in family property settlements. Evidence of these contributions will be assessed by the court and given a percentage value, which is then added to the overall contribution that the court believes each party made to the relationship.

How is this information used?

The assessment of contributions to the former relationship is one question in a number the court asks to determine a property settlement.

The court first determines the assets and liabilities of the parties to the relationship to form an asset pool for division; assesses the contributions of each party; assesses the ‘future needs’ of each party, and finally asks whether the proposed division of property and assets is ‘just and equitable’.

It’s important to note that when assessing contributions, the length of a relationship can be a significant factor. Where a couple were together for five years or more, the court will take a more holistic view of how assets from the relationship were acquired and maintained – more recent contributions may be allocated greater weight than older or initial contributions due to the passing of time ‘blending’ an ex-couple’s interests.

In relationships of shorter duration, they are more likely to be assessed on a case-by-case basis.

Seeking expert advice

In Mediations Australia, family law is one of our specialties. Reaching a property settlement when a relationship ends is a stressful experience and understanding what you may be entitled to can be confusing.

We can help give you a better picture of what are entitled to ask for in a property settlement, in particular by assisting you to understand the value of your contributions to the relationship. Contact us for Mediation today.

What Should You Do Now?

At Mediations Australia, we have a team of family lawyers and mediators who can assist you in Sydney, Perth, Adelaide, Melbourne and all other locations in Australia. We also do international family law matters.

May 20

How to Resolve Your Family Law Dispute Online

By Mediations Australia Family Law Disputes

To say the COVID-19 pandemic is a game-changer may be a bit of an understatement. It has not only changed the way we live, but it has also changed the way we work. For Australian courts, that means using new technology to facilitate the resolution of conflicts such as family law disputes.

According to reports, Australia’s Federal, Family, and Federal Circuit Courts have all risen to this challenge. They have adopted an “online dispute resolution platform” developed by a Melbourne-based company. This platform reportedly has video conferencing features, making the virtual experience similar to those users would have in person.

The Melbourne Mediation company says its platform is best used to resolve “complex commercial and family disputes.” The company also asserts that “special features” on the platform allow for the resolution of family law cases involving “vulnerable users” without compromising their safety.

Let’s take a closer look at how to resolve your family law dispute online.

Services available through the courts

Last April, the Family Court of Australia and the Federal Circuit Court of Australia implemented a national COVID-19 list. This is to expedite the resolution of urgent matters. These were generally categorized as “family law disputes related to the pandemic.”

More than 480 applications to the list are recorded as of March 12, 2021. Those applications came from “every major registry.” Submissions also came from regional locations such as Albury, Dubbo, Mackay, and Wollongong.

Court officials say they accepted the vast majority of those applications. Officials also say judges or registrars heard most accepted cases electronically within three days of assessment.

Criteria for acceptance to the list have since been expanded. Applications that meet these new standards criteria will get a first return date before a National Registrar, Senior Registrar, or a Judge within three business days if designated as urgent upon preliminary assessment. If they are simply designated as a priority, the hearing will be within seven business days.

You can learn more about qualifying cases and related issues on the Family Court of Australia website or the Federal Circuit Court of Australia website.

Parties to family law cases that have nothing to do with COVID-19 can continue to use the Commonwealth Courts Portal. This is a site where couples involved in family law disputes can lodge paperwork and find relevant documents without going to court. You can even file for divorce on the portal.

Regional family courts may also have rules on attending hearings by phone or online. For example, the Family Court of Western Australia has a whole page devoted to the topic. Be sure to check the website of the court where your case is being heard for relevant information.

One more option for family law disputes

Amica is an online tool available to separated couples throughout Australia. As long as the partners can still communicate effectively, this tool can help them overcome some of the more troublesome aspects of separation. Specifically, it can help them create acceptable parenting arrangements. It can also help them craft acceptable agreements regarding the division of assets.

Amica employs artificial intelligence or AI to simplify the process of dividing your assets. The AI does so by analyzing all of the information you and your partner provide about your real and personal property and finances. It then makes suggestions as to how you should divide your assets. The AI also assesses and applies relevant legal principles to your situation.

It is up to you and your partner to put any acceptable suggestions into practice when using Amica. However, experts urge couples to consult qualified legal and financial professionals before acting upon any agreement achieved through this process.

It is important to note that reaching an agreement on Amica is not the same as completing court-mandated family dispute resolution (FDR). It is also important to note that Amica is not a viable option for all separated couples.

To see if it is a viable option for you and your partner, be sure to click the “Is Amica right for me” button on the Amica website. While you are at it, check the “Know Your Rights” and FAQs pages on the site as well.

In the meantime, let us know if you have any additional questions about resolving your family law dispute online. We’re happy to help and we look forward to hearing from you soon.

What Should You Do Now?

May 20

How to Prepare for a Property Settlement Mediation

By Mediations Australia Property Settlement

When it comes to separation, some couples seemingly handle even the most difficult issues with ease and calm. Others, not so much. Some find it difficult to agree on anything — especially on how to divide property and assets. If that is the case for you and your partner, property settlement mediation can help. But to make the most of this opportunity, you must be prepared. In this article, we’ll share some tips to help you get ready.

Is it really necessary?

Before you do all of the legwork associated with a property settlement mediation, you have to decide whether it is necessary. This may be an option for you if these tick the following boxes:

You have made extra payments on your home loan that either of you can access through redraw.
There are sole and joint assets.
You both want to have some control over the matter.
You are not on good terms or able to communicate effectively.

The third point is one worth addressing in greater depth here. If you simply decide to go to court, you relinquish any control you otherwise have over the outcome. It will be up to a family law judge to decide how your property is divided. And he or she will make that decision based on the law, rather than what you want.

Making required Disclosures for your Property Settlement

Once you have decided to pursue property settlement mediation, it is time to start gathering relevant financial documents. These typically include bank statements, mortgage papers, stock certificates, superannuation records, and so on. At this point, you should also gather any documents on solely or jointly held debt.

When you have the paperwork sorted, you must fully disclose the information to your spouse or partner. He or she must do the same with his or her financial records.

Believe it or not, that’s the easy part — especially if you are organized, to begin with. Most people find the next bit — namely valuing the assets and liabilities — much harder. While it is easy to feel overwhelmed and anxious at this stage, consulting a qualified financial professional will help. If you have already enlisted a mediator, he or she can point you in the right direction.

Evaluating the Past and looking to the Future

The next step is a detailed — almost forensic — evaluation of your financial history as an individual and as a couple. You will discuss who brought which assets and liabilities to the partnership; who acquired which assets and liabilities during the partnership or marriage; and how they were held.

Did you have individual or joint bank accounts during the marriage/partnership? Was there a separate account for household expenses? What about credit cards and credit card debt? What about your car(s) and car payments? Did one person pay the rent or mortgage? Did you have a secondary/vacation home? If so, who paid that mortgage?

Ultimately, the answers to all of these questions will help the two of you (and a mediator) decide “who gets what.”

But there is one more piece to the puzzle. That is using personal/financial history to predict future financial needs. Did one or both of you work? If you both did, was there a significant difference in salary? Do both of you hold degrees from university? If you have children, who will have primary custody?

The answers to these questions will also help a mediator frame pertinent discussions to help you reach a consensus.

Establishing realistic parameters for Property Settlement

When it comes to a mediated property settlement it’s important to differentiate between what you want, what you agree to, and what is realistic.

This is because a court must approve any property settlement agreement reached through mediation. To do so, the court will weigh it against established standards for determining “fairness.” If the court finds that the agreement reached through mediation is not fair, it will not approve the agreement and the whole court proceedings will cost you a fortune.

A family lawyer can help you understand the standards the court uses so you can approach the mediation process accordingly.

Moving forward

At this point, each of you should be ready for property settlement mediation. As long as you approach it with an open mind, you will likely find it is far better than going to court. Among other things, it allows you to approach issues in dispute from a conciliatory rather than an adversarial standpoint.

Even if you are not on good terms, the mediators can help each person recognize the other person’s concerns. If necessary, he or she can then help you think about creative solutions to help you reach a consensus.

As long as the agreement you reach is within acceptable parameters, the court will approve it. It will then become a legally enforceable order by which you must both abide.

If this is an option you are considering, we are happy to answer any questions or address any concerns you may have. It’s up to you to take the first step. Contact us at Property Matters Mediation to schedule an appointment today. We can connect you to the best mediator in most major cities in Australia including Canberra, Perth, Adelaide, Melbourne, Brisbane and etc.

Aug 16

The Costs Of Going To Court

By Mediations Australia Litigation, Mediation

The costs of going to court are staggering, yet many people still consider this as their only option when trying to resolve a dispute.

Going to court to resolve conflict is increasingly considered as the worst way to get things sorted, with most courts in Australia now mandating that mediation or alternate dispute resolution is a step or a series of steps that must be undertaken before reaching the door of the court. Despite alternate dispute resolution not working in some circumstances, people in conflict can even find that when they get to court following unsuccessful mediation, the court will order that they keep trying.

Why is Going to Court Expensive?

Court costs are overwhelmingly high, but what invariably is higher are all the legal costs associated with getting there. Once you get to Court, the fees of your lawyer and a Barrister will be in the vicinity of $6,000 – $12,000 per day. It’s likely that it has already cost you possibly ten times that amount to get to this point. Notwithstanding this, if you lose, it may be the case that you will be ordered to pay the winner’s legal fees as well as your own.

In the context of winning and losing, no one goes into litigation with the thought of losing, yet the thousands of cases that go before courts each year and subsequently written up in volumes of case law result in a win and a loss. What is just as alarming is the fact that many who actually win, lose as well. The financial impact weighs less significantly than the emotional impact of being involved in litigation.

What are the Actual Costs of Going to Court?

As mentioned, litigation is made up of hugely laborious steps before even reaching court. These steps are a mixture of preparation, drafting court documents, meetings, expert opinions, including barristers, negotiation, mediation, then court costs. When discussed globally like this, it may not sound to be a lot of money, but when you calculate hourly rates of lawyers and associated professionals whose average hourly rate is between $350 – $700 an hour, the costs escalate very quickly and before you know it, tens of thousands of dollars.

How Do Lawyers Charge?

As mentioned, a lawyer’s fee will be in the vicinity of $350 – $700 an hour, not to mention additional costs including all the personnel who work on your legal matter within the law firm.

Depending on the type of legal matter, it’s likely that when you first engage a lawyer to act for you they will require you to deposit a substantial amount of money into their trust account to enable them to start work. The charges they intend to invoice you for will be subject to a costs agreement that you must see and agree to before any work is instigated. They also must provide you with an estimate of how much your legal matter will cost to litigate.

What About No Win No Fee?

Depending on the area of law that you require help with, there may be law firms who will act for you on a No Win No Fee basis. This is particularly so in relation to personal injury law matters. Simply put, if your matter is successful you will pay the legal fees, if it is not, you will not pay your lawyer’s legal fees.

However, what you need to know is that if unsuccessful you may not have to pay your lawyer’s fees, but the successful party’s lawyers may seek their costs from you.

Accordingly, you do need to consider this and ensure that if your legal matter is eligible for a No Win No Fee contingency arrangement the law firm you’re working with is very skilled in the relevant litigation.

Costs Ordered by the Court

If your matter does not fall inside a No Win No Fee arrangement, if your legal matter is successful it usually follows that the Court may order costs against the unsuccessful party and they become bound to pay aspects of your legal costs.

In relation to these costs, there are a number of ways that the Court may consider the allocation of these costs. For example:

Party costs are the most common form of costs ordered by a court. What this typically means is that the unsuccessful party will be ordered to pay the “agreed or assessed” legal costs. This basically means that you and the other party:

reach an agreement on those costs to be paid; or
agree to an independent assessment being undertaken to determine what each party’s ‘reasonable’ costs are due to the litigation.

It’s usually the case that these costs are between 70-85% of the real costs.

The Intangible Costs of Going to Court

In considering the costs associated with going to court, we mostly consider the financial impact. However, the psychological cost of going to court can be massive.

By way of example, in the UK, a leading Will dispute litigation practice found that over 80% of people they represented in such matters showed significant symptoms of mental health issues related to the often lengthy litigation. Notwithstanding this, particularly in family law litigation, there are many innocent people involved, most notably children.

Is There a Better Way?

The best way to avoid going to court is by not going to court. Legal Industry-Academic, Dr George Beaton from the University of Melbourne says hiring a lawyer is a “grudge purchase” for consumers.

“With most purchases in life a consumer gets a degree of certainty, but lawyers usually can’t say for sure what the final figure will be, because they don’t know how long the case will run or the final outcome.”

Dr Beaton suggested that by far, mediation is a better approach.

In our experience, at Mediations Australia, we obviously agree. Litigation is set up by conducting a number of adversarial steps along the way that fragment and worsen relationships culminating in a bitter fight to the end. This typically results in no one walking away content with the outcome, but rather significantly poorer for the experience and psychologically damaged.

How Does Mediation Help?

Mediation derives from an acknowledgement that disputes are a part of life and the sooner you resolve them, the better for everyone.

Disputes get worse the longer they’re left, by choosing mediation early in the dispute, resolution can typically be achieved.

Notwithstanding this, the costs of mediation are a fraction of litigation costs. The same dispute may cost $300,000 to litigate and less than $5,000 to mediate, potentially including legally-binding agreements being drawn up.

How Do I Make The Decision?

A very small percentage of disputes simply won’t resolve in mediation. This primarily is because both parties are intractable in their positions. In other words, they won’t give an inch. These are the types of matters that Dr Beaton referred to as “grudge” matters. Common sense goes out the window and their fierce determination to win at all costs takes over. At times, there may be one innocent party to all this, while the other one is intent on wrecking them financially and emotionally.

The other types of matters that end up in litigation are invariably those that are very complex and potentially have many parties to the litigation.

But that said, increasingly arbitration is being used to settle these types of matters. For example, many complex commercial and construction disputes are arbitrated in Australia.

You can read more about how Mediations Australia can assist in family law arbitration and other types of arbitration.

What to Do Next

Regardless of the type of dispute you’re involved in, it’s advisable at soon as possible to seek advice. At Mediations Australia, our mediators are all qualified lawyers. They’re perfectly suited to ascertain the nature of your dispute and will give you some potential options that will best achieve a resolution that you’re happy with.

Contact the Perth office of Mediations Australia today to discuss how family law mediation can help you. We can connect you to the best Mediator in most major cities in Australia including including Canberra, Perth, Adelaide, Melbourne and etc.

Jun 11

Five Benefits of Using Mediation to Resolve Divorce Issues

By Mediations Australia Divorce, Mediation

Divorce is one of the most difficult times in any person’s life. It’s made harder by the fact that while you’re struggling to come to terms with the end of an important relationship in your life, there are big issues to be resolved around property, finances and children.

These days many people going through a divorce prefer to deal with these painful issues through family law mediation, rather than face the costly, time-consuming and adversarial route of going to court.

By utilising the services of a qualified mediator who acts as a neutral third party, the divorcing couple can take control of how to resolve the tricky issues involved in separating lives in an understanding, calm and collaborative environment.

Here are five benefits of using mediation to resolve issues around divorce, which our Perth mediation office can help you with.

Control when a couple going through a divorce goes to court, they are effectively leaving their futures in the hands of the judge and their respective lawyers, who make decisions for them on things such as dividing property and assets because they can’t. In mediation, the couple takes back control in coming to a fair division of their shared assets by working through the issues and creating a solution that works for both of them. This is achieved through negotiation, expertly guided by the family law mediator. In mediation, both parties have time to put their side, explain their needs, discuss areas of both agreement and disagreement, and then come to a joint resolution. In mediation, no settlement is imposed on either party as in court.
Confidential and voluntary family law mediation between divorcing couples doesn’t happen unless both voluntarily agree to attend. Equally, both are free to walk away at any time if the process is not working for them. Unlike court proceedings, which can be made public and even receive adverse media publicity, agreements made within mediation are confidential unless both parties agree otherwise. This is an attractive feature for many people given the sensitive nature of the issues discussed during a divorce.
ConvenienceAttending court can be difficult for many people, particularly if you’re working, plus the procedures of the court can be notoriously slow and time-consuming. Family law mediation offers greater flexibility and convenience, with the mediator generally able to stage the session close to both parties and at a mutually agreeable time. Mediation usually consists of the main meeting room, with separate ‘break-out’ rooms for each party to conduct separate, private discussions with the mediator/s as the negotiations are conducted.
Co-mediation family law mediation offers the possibility of engaging neutral co-mediators. The benefits of this include having two qualified people guiding the mediation, rather than one. One may have more expertise in law while the other offers more insight on financial matters, mental health, or child welfare. They can also act as a check on each other to prevent any perceptions of bias and to ensure the mediation process stays on track. One mediator may be male and the other female, if the parties to the mediation feel more comfortable discussing divorce issues with someone of their own sex. Negotiations may also be conducted more speedily with two mediators, each having separate discussions with the divorcing couple. Whether there are one or two mediators, at all times they remain neutral and merely act as facilitators for the estranged couple to negotiate their own agreement.
Affordable and faster compared with litigation through the courts, mediation remains a markedly cheaper, more convenient option for most people. It should be noted that if a co-mediation is preferred, the costs increase but the method still remains more affordable than legal action through the courts. Also, you can take the help of family lawyers Gold Coast for legal information.

Family law mediation will usually produce an outcome that is satisfactory to both parties sooner than court action, too, because it’s free of the multiple procedures, administration and other delays of the court.

Finally, mediation helps participants focus on communicating with each other in a civil, constructive way, preserving their relationship once the divorce is finalised. This is particularly important when there are children involved.

If you have any questions about the benefits of mediation in resolving all the issues involved in a divorce, contact the Best Mediation Perth office of Mediations Australia today to discuss how family law mediation can help you.

Jun 11

How You Can Reach an Agreement in Mediation

By Mediations Australia Mediation

Mediation is a proven way for people to avoid going to court. Family law mediation, in particular, can save people who are going through the emotional trauma of a relationship ending a lot of stress, time and money because of its high success rate.

The reason this form of negotiation works is because it brings a couple together in a structured but informal environment to clearly and calmly discuss the issues between them, guided by a neutral third party in the form of an expert best mediator.

This voluntary method takes away the sometimes overbearing influence of lawyers and the adversarial nature of the court environment and instead gives control to the former couple to make their own decisions about how best to separate their lives and move forward.

But like anything in life, preparation is the key. Family law mediation requires some prior planning and work by each party in order for it to be successful. Here are a few things to take note of…

Work out the key issues beforehand

It’s more than likely that both of you will know the main areas of disagreement or contention arising from the separation. These could relate to the children from the relationship, property matters, finances, or many other possible topics.

What’s important is that you are clear about which issues you wish to raise for discussion during the mediation. Making a list and perhaps ranking each issue by priority or importance is one way of ordering your thoughts.

Ideally, you provide this list of topics to your ex-spouse ahead of the mediation session so that they can be similarly prepared and ready to constructively discuss each area of disagreement.

Have your documents organised

In support of the issues you wish to try and resolve through mediation, it’s wise to have all relevant documentation organised and at hand before the appointment.

If you’re discussing property and financial matters, this could mean having valuations, bank statements and tax returns with you. If you’re discussing child custody matters, it will be beneficial to have any child support assessment documents with you, for example.

Again, it’s good practice to make sure your ex-spouse has copies of these documents before the mediation appointment. Producing ‘surprise’ documents on the day can lead to a breakdown of negotiations, wasting everyone’s time and money.

Take a realistic view of your options

Working out the issues that need to be addressed is one thing, but deciding the best course of action to take in resolving them is an altogether different proposition.

It’s best to discuss the various options that may arise with a legal professional before the mediation appointment so that you have some certainty about which options are preferable and realistic. For instance, if you plan to suggest buying out your ex-partner’s share of the family home, it’s best to know whether you will have the financial capability to do so before the mediation.

Similarly, with child custody matters, it’s advisable to properly understand what your children’s preferences are in terms of shared living arrangements and how they can be achieved.

It’s important in undertaking this process to think about how your ex-partner will respond, and what they may ask for in return. By doing so you will be more prepared to respond effectively and appropriately during the mediation.

Be prepared to give some ground

No one gets everything they want through mediation. But unlike court decisions, which usually produce a clear ‘winner’ and ‘loser’, a settlement negotiated through family law mediation provides both parties with a resolution they can live by.

Naturally, this process involves some compromise – that’s what negotiation is. It’s best to be prepared ahead of the mediation appointment and understand where you are willing to give some ground on the relevant issues… as well as where you are not.

Our expert Gold Coast mediation specialists can provide helpful advice and guidance on all the issues raised in this article to ensure you are properly prepared for mediation. By doing so, you can take the benefit from mediation’s best features: a quick, affordable and legally binding agreement that allows you to move on with your life.

Jun 11

Mediation in Property Settlement Cases

By Mediations Australia Mediation, Property Settlement

When a couple decides to end their relationship, it’s usually the case that they wish to separate their lives as soon as practicably possible. This can prove difficult to do if you owned property together during the relationship.

Settling property matters is an important step in being able to move forward with your life, particularly given the amount of money we usually have tied up in a real estate asset. Whether you want to sell what was formerly the family home and split the proceeds, or wish to buy out your ex-spouse in order to stay on in the house, resolving this issue can be hard at an already emotional time.

What’s more, many people are under the impression a court will split property assets 50:50 between the parties. This is not the case. Instead, the court uses a lengthier process that takes in such things as the financial and non-financial contributions made during the relationship and each party’s future needs in order to decide on a fair and equitable division of property.

How does mediation help?

Because it is complicated and takes some time, property settlement is something to be undertaken as soon as possible after a couple decides to separate or divorce. Married couples do not need to wait until they are divorced in order to decide what to do with shared property assets.

Compared with going to court, mediation is a faster, cheaper and generally more satisfactory means of coming to a property settlement with your ex. The structured process, guided by an independent third party in the form of a qualified, experienced mediator, allows each of you to calmly and methodically go through the issues involved.

By doing so you can hopefully come to a negotiated settlement that meets the needs of both parties. Mediation property matters are generally resolved much faster than when they are conducted through the court process.

Making the agreement formal

In many cases, a separating couple will already have worked out what they want to happen in regards to dividing property and other financial assets. But even in this situation, it’s advisable that each seeks independent legal advice and proceeds through the mediation process.

By doing so you can reach an agreement that the mediator can formally document. It’s then up to both of you to decide whether the agreement is to be enforceable, and therefore legally binding, or merely informal, with both of you agreeing to abide by its terms.

The advantages of family law mediation

The ability to act quickly in conducting a mediation, plus its affordability and convenience for both parties, means that the sometimes complicated process of property settlement is made much easier.

This is particularly important when there are children from the relationship, who may be experiencing emotional disturbance from the uncertainty around their future living arrangements as a result of the separation.

Additionally, the agreement made between you and your ex-spouse is a work of mutual creation. You may not get everything you wanted, but you will both get many of the things you needed. This process helps preserve a civil relationship between the parties in the future.

Family law mediation is also a voluntary process. You can walk away at any time if the experience is not working for you. Any agreement you make with your ex is also confidential between the parties.

What to do next

If you have a mediation property matter and require advice or guidance on the next steps to take, contact At Mediations Australia. We have a team of family lawyers and mediators who can assist you in Perth, Canberra, Sydney, Melbourne….and all other locations in Australia. We also do international family law matters.

Jun 11

5 Reasons Why You Should Consider Mediation for Child Custody Disputes

By Mediations Australia Mediation

When a couple’s relationship ends, things can become so bitter and emotional that people can think going to court is the only way to resolve the issues between them, including the custody and raising of any children from the union.

But fighting through the court is generally a drawn-out, costly and adversarial process that can emotionally damage the children, ruin a future civil relationship between the ex-partners, and produce an outcome that is not just and equitable to both parties.

Here are the five reasons why participating in family law mediation to resolve child custody disputes is a better way forward.

Mediation is less stressful because there’s Less Conflict

The mediation process empowers the former partners to discuss the relevant issues, canvass options to resolve them and come up with their own mutually agreeable parenting plan to address child custody. Whereas mediation is collaborative in nature, pursuing your ex-partner through the court can create more conflict and distress for all members of the family. Mediation focuses the parties on finding a solution that works for both of them and, most importantly, is in the best interests of the children.

It’s better for the Kids

Adults often forget how much children notice and pick up when their parents fight. The worry about their living arrangements and the disruption to their normal routines when parents split up can be even more damaging. Unlike court, mediation provides a calm, child-focused environment in which the estranged adults can concentrate on what is most important: the best outcome for their children.

Court proceedings on child custody matters are often considered a chance for ex-spouses to air ‘dirty laundry’ about each other, which can get back to the children and further harm them emotionally. An experienced, neutral mediator ensures that the mediation process is constructive, not destructive, in finding a workable custody solution that keeps both parents present in their children’s lives.

Mediation is meant to help both of You

Court decisions are often said to produce ‘winners’ and ‘losers’. Lawyers fight for their clients in order to get a result that is better for them than their opponent, or the ex-spouse. In contrast, mediation for child custody is designed to achieve a win-win situation. You might not achieve everything you’d like, in terms of custody of the children, but you can reach an agreement with your ex that you can both live with. The neutral mediator is there to help you reach this agreement by making no judgments and offering no opinions. Instead, the mediator facilitates an environment in which both parties feel comfortable discussing the relevant issues, however difficult, and methodically work through them to find areas of agreement and hopefully, a mutually satisfactory resolution.

Workable Relationship in the Future

When a couple has kids, they are bound together in caring for and raising them until they are of legal age, even if they separate. This means that whether they split up or not, they need to communicate with each other regularly about all the issues children will face, from health to education, recreation, religion, access to extended family members, and much more. When couples fight through the courts, their relationship beyond legal action is often destroyed by the whole experience. This deterioration impacts further on the children. One of the aims of family law mediation is to avoid this happening. Instead, by coming to an arrangement you both helped achieve through mediation, you can hopefully move on with your lives and deal with each other in a civil, constructive manner for the future benefit of the children.

It Makes Dollars and Sense

Everyone knows going to court is an expensive process. Lawyers who represent people in court don’t come cheap! Not to mention the time and stress involved. Mediation is in general much more affordable, requiring only the separated couple and a mediator, and can achieve a resolution more quickly. The result is a better outcome for the ex-partners and their children.

If you would like to further discuss any of the issues raised in this article, contact our expert Melbourne, Perth, Brisbane, Sydney mediation team today. Mediations Australia exists to help people stay out of court and resolve their issues in a faster, cheaper, and more effective way.

Jun 11

How to Get Ready for Property Settlement Mediation

By Mediations Australia Mediation, Property Settlement

When it comes to family law matters, none of us really want to go to court. Unfortunately when a couple separates, dividing up the property assets acquired either jointly or separately during the relationship can prove to be a conflict-riddled process that often ends in costly, time-consuming litigation.

In many cases these days, separating couples must first try the mediation process to try and come to a property settlement on their own, without the need for court action. Mediation is more affordable, often faster, and allows for a more collaborative approach between ex-couples in a more informal setting to try and resolve their dispute.

Preparing for a Mediation Property Matter

One of the keys to a successful mediation property matter is preparation. Understanding the detail of what the assets and liabilities between you are, the options for splitting them up, and how mediation can achieve this result, is vital. Our Sydney meditation lawyers can help you get the best out of mediation for property settlement by checking off some of the things detailed in the rest of this article.

The To-Do List for a Property Settlement Mediation

It’s important to understand upfront that mediation involves compromise. Neither party should expect to get every single thing they want but through discussion and negotiation, they can achieve an agreement they can both be satisfied with. The key to successful mediation on a property settlement is ensuring you come to the meeting prepared.

Firstly, a duty the parties to a mediation property matter need to meet their assets and liabilities before or at the meeting. Failure to do so could see the Family Court invalidate any agreement reached through mediation. Disclosing assets and liabilities should cover such things as:

Your income or earnings;
current superannuation amount;
valuation details of any trusts, companies or businesses in which you have an interest;
information on the property you sold both in the year before and since you separated from your former partner;
appraisals or valuations of any real estate assets you currently hold;
estimates of the values of vehicles you own.

In some cases, former partners may not know what assets the other party holds but it is always helpful to know ahead of the mediation process in order to be ready for a possible negotiated settlement.

This may require doing some due diligence through online databases on land ownership, company registration and professional associations in order to assess the former partner’s assets, income, and income-earning capacity.

Our Sydney mediation experts then suggest you compile both your assets and liabilities and those of your former partner (as you understand them) in two comparative lists so that you can identify before the mediation where significant differences exist.

Have Property Settlement Options in Mind

Part of good preparation for an effective property mediation is having an idea of what you’ll be happy with as a settlement before you begin the process. The advice of an experienced lawyer and/or financial adviser can prove invaluable in working out what assets from the former relationship you need in order to move forward with your life. Perhaps you wish to keep the family home but need to refinance the mortgage over it and payout your former partner. Or perhaps you both wish to sell up and start afresh. Family law mediation helps clarify and prioritize these issues so a negotiated settlement that is equitable to both parties can be reached.

Our Brisbane mediation team at Mediations Australia can help answer all your questions on the mediation process – how it works, what to expect, and how to prepare. Our specialist practitioners in family law mediation will help you realize the real benefits of this form of dispute resolution.

At Mediations Australia, we have a team of family lawyers and mediators who can assist you in Canberra, Perth, Adelaide, Melbourne, Sydney, and all other locations in Australia. We also do international family law matters.

Jun 11

The Role of the Lawyer in Mediation

By Mediations Australia Mediation

These days mediation is a required step before many family law matters may proceed to court action. In many cases, the former partners will resolve their areas of disagreement at this stage, saving time, money and a lot of stress. The collaborative nature of mediation, guided by a neutral third party in the mediator, can also help ex-couples maintain a civil discourse beyond their dispute.

The increased use of mediation in family law poses a challenge for lawyers who specialise in this area. Lawyers are trained for the adversarial nature of the courtroom, where the final decision of the judge causes one party to be the ‘winner’ and one the ‘loser’.

Mediation, by comparison, is designed to empower the parties in dispute to come up with their own solutions to resolve their disagreements and so lawyers have a different, yet still important, role.

Our Brisbane mediation experts at Mediations Australia have backgrounds in both mediation and as family law practitioners, meaning we offer the best of both worlds.

How can a lawyer help with family law mediation?

Lawyers can advise you both before the mediation session as well as attend on the day.

Prior to mediation, an experienced lawyer can be particularly valuable in advising you on everything from how the mediation process works and what to expect from it to the strength and weaknesses of your case, the settlement options you should consider, and the chances of success of further legal action, including the likely costs and duration of taking the matter to court.

You can also have a lawyer present at a mediation appointment with your ex-partner but should be vigilant that they attend in a ‘hands-off’ advisory capacity. In this setting, lawyers need to restrain their natural instinct to do the talking and negotiating on behalf of you, their client. The trained mediator is the person running the mediation.

Instead, a lawyer attending mediation is there to offer general legal advice to you and, in certain situations, the other participants in the mediation and to offer a legal view of the possible settlement options canvassed. They will often ‘reality test’ proposals for settlement to see that they legally meet your requirements and also those needed for a court to enforce the decision. Your lawyer is not there to influence the way the mediation is conducted.

At Mediations Australia, we have the expertise and experience in both mediation and family law practice to be able to provide you with the best mediation experience possible. Our family law mediation experts know how to tailor their advice and guidance to clients to achieve a successful outcome from mediation, helping you avoid the stress and cost of a subsequent court action.

Jun 11

Difference Between Mediation & Conciliation

Difference Between Mediation and Conciliation

By Mediations Australia Mediation

There are a variety of terms used in the area of alternative dispute resolution (usually referred to these days as just ‘dispute resolution’) and at times, they can be confusing.

Two of the most common terms are mediation and conciliation. Both are common processes used in family law mediation. Both share many features but also have some key differences, which we’ll outline below.

What is Mediation?

In its most basic form, mediation is an informal discussion between a minimum of two people to air issues, create solutions and examine options to resolve a disagreement or dispute. In family law mediation, this may be to discuss living arrangements for children, who is going to pay for what, and how property is to be split up. The process is conducted by a mediator, a trained professional who is impartial and neutral. The mediator provides the framework for the discussion and facilitates the circumstances to move it forward so that each party can understand the other’s point of view.

Unlike conciliation, the mediator’s key role is to empower the parties in dispute to understand the issues between them and come up with their own way to resolve the disagreement so as to avoid the need for court action. In family law mediation, the mediator consciously avoids offering suggestions or recommendations to either of the ex-partners about ways to resolve the dispute. Instead, they offer general guidance to the parties as a way of helping them find their own solution to the problem.

When an agreement can’t be reached through mediation, a dispute will often move to a stage where a third party such as a judge will need to impose a decision that binds both parties.

What is Conciliation?

Conciliation shares some features of mediation in that it is a more informal, more affordable and more efficient process than going to court. Like mediation, a qualified and neutral professional also facilitates negotiations between those in dispute to help them achieve a resolution.

Compared with mediation, however, the conciliator takes a more interventionist role. The conciliator may be asked to express an opinion on the best way for the dispute to be resolved and suggest the terms of a negotiated settlement. The parties may also ask the conciliator to make a non-binding recommendation or finding on the dispute, based on both the facts and legal issues at the heart of the disagreement. This may or may not be because the parties in dispute have been unable to reach an agreement.

The conciliator will make recommendations to the parties jointly for their consideration. This process generally happens after the conciliator has met separately with the parties to try and resolve the dispute, interpreting factual and legal issues, offering advice and suggesting possible solutions.

Conciliation is designed to bring about reconciliation and resolution between those in a family law dispute, often by encouraging each party to make concessions and compromises, but it should be noted the result is not legally binding on either party.

In Summary

Working out whether mediation or conciliation is best for your particular family law dispute is best achieved by consulting one of our Perth, Brisbane, Melbourne ,Sydney mediation team at Mediations Australia. We can discuss the benefits of each process so that both you and your ex-partner feel confident in committing to a method that will help you both achieve a resolution of your family law issue.

Jun 11

How Mediation Can Help in Financial Agreements

By Mediations Australia Financial Agreements, Mediation

In the context of family law disputes, unfortunately for many, the default position is to seek legal help and pursue a resolution through litigation. Whilst this approach is largely borne out of people simply not knowing all of their options, it can be a dangerous and expensive approach.

Australia’s Family Law Act 1975 recognises financial agreements made between married or de facto couples before, during or after their relationship as legally binding documents. Provided each party signed the agreement and received legal and financial advice before making it, the agreement will cover what is to happen regarding specific financial matters if and when the relationship breaks down.

What’s perhaps less well known is that mediation is an effective way for these agreements to be negotiated to ensure a fair and equitable outcome for both people in the relationship. Our Brisbane mediation experts are specialists in financial agreements achieved through mediation.

What do financial agreements cover?

A financial agreement can deal with a number of issues in the unfortunate event of a relationship ending, including:

Financial settlement (including superannuation entitlements);
maintenance and/or child support of one spouse by the other;
any incidental financial issues.

Some couples may choose to include these arrangements under a broader (or complementary) property settlement that covers such assets as the family home, cars, household effects, jewellery and clothing, but also shares in a business, superannuation and investment properties. It may also address what happens with liabilities from the relationship such as mortgage and credit card debts.

What are the advantages of mediation in making a financial agreement?

When couples separate, sorting out financial affairs and division of property from the relationship is often an emotional and fractious experience. In worst-case scenarios, it ends up in litigation, with all of the expense and conflict that accompanies the court process.

Family law mediation to achieve a workable financial agreement allows both parties in a relationship to take control of the decisions to be made in a collaborative, cooperative way. It’s also more cost-effective and quicker than court, and generally allows both parties to maintain a civil connection with one another despite the relationship ending. The mediation process allows for both parties to contribute to the resolution of their financial issues in a fair and equitable way.

Find a mediator

The practitioners in our Brisbane family law mediation office have wide experience in conducting mediations for separating couples. We have the advantage of also being family lawyers so can advise not only on the best way to negotiate a financial agreement but also ensure it is legally compliant and enforceable.

One way to do this is to formalise a financial agreement by applying for a consent order from the court, without you needing to go through the court process. A consent order is a written agreement that both parties agree to abide by and has the same effect as a court order made by a judicial officer after a court hearing. The order can deal with property and financial matters such as transfer or sale of a property, splitting of superannuation, and child and spousal maintenance.

Contact Mediations Australia for help and guidance on making a financial agreement through family law mediation. call one of our Perth, Melbourne mediation, Sydney and Brisbane meditation teams today.

Jun 11

Mediate, Collaborate or Litigate.

By Mediations Australia Litigation, Mediation

Mediate, Collaborate, or Litigate: In the realm of family law disputes, many default to seeking legal assistance and pursuing resolution through litigation. This approach, often stemming from a lack of awareness of alternative options, can prove costly and fraught with risks.

A more advantageous approach is to adopt a resolution-focused mindset when addressing family law disputes. This entails prioritizing methods that minimize collateral damage and expenses while effectively resolving the issues at hand.

Let’s look at the commonly used resolution practices in solving family law issues.

Mediation

Family Law Mediation works! It’s really as simple as that, providing that you and your ex-partner have a willingness to resolve your matter. Mediation is a compulsory step in all family law matters, so there’s really no way out of it, so you and your ex-partner should take the opportunity seriously. There are of course exceptions to this compulsory mediation step, in particular where there is the prevalence of domestic violence etc.

Mediation simply put is a process in which the issues that are in dispute between you and your ex-partner are identified by you both and you agree to do your very best to resolve them. The mediator is an impartial facilitator who through their skill set will assist you both resolve and reach an agreement. The mediation doesn’t necessarily have to occur with both you and your ex-partner in the same room. The mediator can work between you both in separate rooms etc.

Mediation can occur over one day or multiple depending upon the complexity of the issues involved.

If you need mediation help, we can assist.

Collaboration

Like mediation, the practice called “collaborative law” is resolution focused without relying on litigation. The most significant difference is that mediation does not necessarily rely on lawyers being involved where collaborative law does. The other very important feature of collaborative law is that the family lawyers acting for each of you agree with you that litigation is not an option. By removing litigation as a fallback position it can assist in focusing you and your ex-partner on a resolution. Similarly, the lawyers are also solely focused on the resolution without court intervention because they are bound by the same agreement. In the case that you and your ex-partner wish to cease the collaborative law process, you can do so, but it cannot be with the same lawyers.

Collaborative law can work very well if you and your ex-partner would like legal help along the way without that help being centred towards litigation.

Litigation

In the context of family law disputes, only a very small number of matters really need court intervention. Using the courts and lawyers to resolve your dispute is expensive, very lengthy and the issues in dispute have a tendency to become more complex. There is a plethora of research available that clearly shows time and time again that the worst way to resolve the far majority of family law matters is through litigation.

At the time of writing this article, the average time to resolve a family law dispute through litigation is approximately 3 years, with legal fees invariably in the range of $100,000 – $600,000. Not to mention the emotional impact that is had by all involved.

Which is best for you?

The quickest and most inexpensive way to resolve family law matters is through mediation. That said, there are a number of things to consider in determining whether mediation or collaborative law is for you.

Take us up on our offer for a free, no-obligation consultation to learn more about which method of resolution best suits your circumstance.

How Can Mediations Australia Help?

Contact Mediations Australia for help and guidance on making a financial agreement through family law mediation. call one of our Perth, Melbourne, Sydney and Brisbane meditation teams today.

Jun 11

What Do I Need to Disclose in My Property Settlement Dispute?

By Mediations Australia Property Settlement Dispute

The effective resolution of family law disputes mediation relating to property settlement relies upon transparency between you and your ex-partner to fully disclose relevant information to each other.

Typically “disclosure” is discussed in the context of financial matters, but it also can relate to mediation parenting matters as well.

The process of disclosing all relevant information to the other person is called, “discovery” and in circumstances where a person does not fully share the relevant information, it can have serious consequences.

What Do I Need to Disclose in Financial Matters?

What needs to be disclosed in financial matters will vary from person to person, but usually, the following will be applicable in a majority of situations

Payslips from your employment
Any Centrelink statements
Tax Group certificates (typically for last 3 years)
Details of all assets, including any valuations of those assets
All Tax returns
All Bank statements (including credit car statements)
Superannuation statements
Details of interests in companies or trusts

Importantly disclosure also requires you and your ex-partner to disclose all information regarding any disposal of assets in the year prior to or the year following separation. Disposal in this context means, selling an asset, transferring ownership or gifting it to someone else. It follows that information regarding what was purchased with funds derived from the sale of an asset will also be required.

What If I Have More Questions?

If you wish to get more information relating to disclosure of discovery the Family Law Act 1975 and the regulations regarding the duty of disclosure in the Family Law Rules 2004 is the best place to start. More specifically, Chapter 13 of the Family Law Rules.

If you have any questions regarding disclosure and mediation, don’t hesitate to talk to one of our Perth, Melbourne, Sydney and Brisbane mediation teams.

Jun 11

Nothing Alternate About Alternate Dispute Resolution (ADR)

By Mediations Australia Alternate Dispute Resolution

Increasingly throughout the world alternate dispute resolution, be it through mediation, collaborative law or arbitration is becoming the norm, as courts more and more divert people in dispute away from litigation.

What’s Wrong with Litigation?

Litigation is lengthy, expensive, and emotional rollercoaster and rarely gives the results that those caught in it expected. Both courts and governments throughout the world are making it more difficult to use the court system to resolve disputes and are trending towards punctuating alternate dispute resolution steps repetitiously along the way to force people into an agreement as opposed to leaving a judicial officer to do it.

Is Alternative Dispute Resolution Expensive?

ADR is a very cheap alternative to litigation. For example, in family law, expect to pay your family lawyer between $350 – $700 an hour, with most family law litigation lasting at least 2 years with costs above $50,000, whereas mediation will cost in the vicinity of $3,000 ($1,500 for each person). In business disputes, the Queensland Government report that those who successfully resolve their business dispute with ADR, save up to 95% of costs if they went to court.

What are the Types of Alternate Dispute Resolution

In the context of family law, there are essentially 3 types of Alternate Dispute Resolution.

Negotiation

Negotiation is an informal means of resolving a dispute, where you and your ex-partner communicate directly with each other to try and reach an agreement. In family law mediation, these negotiations can be conducted face to face, over the phone or by letter or email, with or without the assistance of a third party (family lawyer etc).

Collaborative Law

A collaborative law approach is predicated on an agreement by you and your ex-partner that you will not use litigation to resolve your family law dispute. Collaborative law leverages this agreement to allow you to work collaboratively with your lawyers and others if need be to work towards a resolution.

The three principles of a collaborative approach are:

a pledge not to go to court;
an honest exchange of information, including open disclosure of all relevant documents and details; and
a solution through negotiation in good faith, that takes into account the parties’ priorities and where applicable, those of their children.

Mediation

Mediation can work in a number of ways. It can be instigated by your family lawyer upon your request or alternatively, directly through a mediation agency, like Mediations Australia. The process in the case of the former will initially be driven by your family lawyer as they work with you to identify the issues in dispute, assist you in identifying your bottom-line and help you prepare position statements. In the latter case, you through the assistance of the Best mediator will define the issues and identify on what basis you’re prepared to settle. Once these preliminary steps have been undertaken the mediation will be convened and the mediator acts as a neutral party assisting you and your ex-partner to agree, then formalise that agreement.

Arbitration

Arbitration is an ADR method and out of all ADR types is the one of which that is most akin to a court process. You and your ex-partner will usually have lawyers who will formally submit relevant evidence etc to best inform the arbitrator to ultimately decide o your matter.

What Should I Do Next if Considering Alternate Dispute Resolution?

For more information or if we can assist in answering any questions you may have, simply reach out to one of our Perth, Melbourne, Brisbane mediation and Sydney mediation team members at Mediations Australia.

Jun 11

Family Law Mediation. What Happens If I Don’t Want to Do It?

By Mediations Australia Family Law, Mediation

At the outset, there are circumstances in which mediation is not appropriate and we will detail them further in this article.

In Australia and throughout the World there is a growing acknowledgment that litigation does not work, but for the very few who have no other alternative. Litigation is often lengthy, costly, have little regard for the emotional impact of all involved and invariably hands down judgments that no one typically is happy with, but have no other choice but to live with. Conversely, collaborative law, mediation, and arbitration are all ways in which you and your ex-partner are able to play very active roles in how your family law dispute is negotiated and the middle ground that you both are willing to agree to. That said, there are no winners or losers in mediation either, but you will walk away when successful spending significantly less time and money than the alternative.

Is Mediation Compulsory?

Family Law Mediation which is also called Family Dispute Resolution (“FDR“) is the mandated preliminary step to initiating court proceedings in family law matters. Once mediation has been completed hopefully your matter has now been resolved, but if not, you will be issued a certificate from the mediator advising the court whether or not a genuine attempt was made by you and your ex-partner at the mediation.

More specifically, the Certificate will state one of the following:

the other party did not attend
you and the other party attended and made a genuine effort to resolve the dispute
you and the other party attended but one or both of you did not make a genuine effort to resolve the dispute
the FDR practitioner decided your case was not appropriate for FDR, or
the FDR practitioner decided it was not appropriate to continue partway through the FDR process.

Importantly, if you want to say “No” to mediation because you have fears of violence towards you or fears that your child or children have been abused, you need to raise this at the outset with the mediator. In these circumstances, there will be no requirement for you to attend the mediation.

But What If I Just Don’t Show Up?

There can be significant ramifications in simply not attending FDR, in particular, considerable delays in trying to get the dispute listed by the court and the potential risk that because of your no-attendance the court may order you to have to pay your ex-partners legal costs.

How Can Mediations Australia Help?

At Mediations Australia, we can answer your questions regarding FDR and other types of alternate dispute resolution. Call one of our Perth, Melbourne, Sydney and Brisbane meditation teams today.

Jun 11

How to Get Ready for Mediation

By Mediations Australia Mediation

Mediation is a highly effective way of resolving family law dispute mediation to do with property or parenting matters. Generally speaking, the far majority of matters that are mediated are done so successfully saving separated couples tens and potentially hundreds of thousands of dollars, not to mention the emotional stress that lengthy litigation brings with it.

One of the keys to a successful mediation is to ensure that you’re adequately prepared for it and don’t squander the opportunity of using the time effectively to tie up all the loose ends.

How Do I Prepare for the Mediation?

Most importantly, know what the issues are that are in dispute. This can be more difficult than you think, as at times your judgment of such matters is clouded because of all the emotion involved. Know also the facts and figures and your middle-ground that you’re prepared to settle on.

Understand the Procedure

Acknowledge that mediation is not an interrogation or something that parallels a court process. Ensure that your mediator has fully briefed you on the protocol and you, in turn, you have fully briefed the mediator on the issues in dispute.

Be Prepared to Negotiate

Mediation is not about winning or losing but rather finding middle-ground that you and your ex-partner can live with that allows you both to move on and focus on the things that matter, your children (if relevant).

Come to the mediation with a preparedness to settle for what may be your bottom line and anything over this is a bonus.

Engage with the Mediator Prior to the Mediation

It’s always a good idea to talk with your mediator a few days out from the family law mediation to go over any questions you may have and to query whether he has permission from your ex-partner on their settlement objectives. This information isn’t always available, but if it is, it can prove useful. We commonly refer to this exchange of information as “position reports.”

If you have any further questions on becoming better prepared for your mediation, call one of our Perth, Melbourne, Sydney and Brisbane meditation teams.

Jun 11

Becoming Independent Sooner. How Mediation Can Help You Agree on Spousal Support

By Mediations Australia Mediation

The last predicament you want to be in the following separation is without money. Yet it’s not uncommon for people to leave a relationship without properly considering everything. It goes without saying that once separated people can feel the financial brunt very quickly.

That being the case, it doesn’t mean that you can’t turn things around swiftly through the help of spousal support, sometimes referred to as spousal maintenance.

What is Spousal Support?

In its simplest form, it’s a payment from your ex-partner to you or vice versa.

The initial step in receiving spousal support is whether or not you meet the threshold test which essentially poses two questions.

Are you unable to ‘adequately support’ yourself on your income; and
Is your ex-partner ‘reasonably able’ to pay you.

In the case that you qualify by answering “yes” to the above, consideration is then given to what extent your ex-partner should remunerate you.

Are There Any Time Limits to Spousal Support

Generally speaking, a spousal maintenance order has to be made within 12 months of becoming divorced ( for married couples – see Section 44(3)(c) of the Family Law Act 1975 and within 2 years from the date of separation ( for de facto couples – see Section 44(5)(a) of the Family Law Act 1975).

How Do We Agree on Spousal Support

Reaching agreement on spousal support matters is best done by way of agreement. If you cannot reach an agreement yourselves, this is where mediation can be very useful.

What Happens After We Reach an Agreement on Spousal Support?

If you have reached an agreement yourselves or through mediation, it is best to have the agreement formalised by way of consent orders through the court. Your mediator will assist you with this. Further information can be found in sections 72, 74 and 75 of the Family Law Act.

How Can Mediations Australia Help

At Mediations Australia, we can help mediate matters relating to spousal support and once an agreement has been reached, ensure that the agreement is filed by way of consent orders. This ensures that if there is any breach of the agreement in the future, the court can adjudicate the matter.

If you want to know more about how Mediations Australia can help, simply ask one of our Perth, Melbourne, Brisbane and Sydney mediation team members.

Mediations Australia

Family Law Mediation for Property Division

Book a Free Consultation with a Family Law Expert.

How the mediation process is conducted

Considering a Property Settlement?

The role of a legal professional in mediation

Let us help you

Getting legal advice early is the most important thing to do.

Working out the property pool

Need some information that relates to superannuation?

What factors does the court consider in dividing the property pool?

Considering a Property Settlement?

Time limits and legal advice

Getting legal advice early is the most important thing to do.

Considering a Property Settlement?

More detail on contributions

Book a Free Consultation with a Family Law Expert.

How is this information used?

Seeking expert advice

What Should You Do Now?

Getting legal advice early is the most important thing to do.

Services available through the courts

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One more option for family law disputes

What Should You Do Now?

Getting legal advice early is the most important thing to do.

Is it really necessary?

Making required Disclosures for your Property Settlement

Considering a Property Settlement?

Evaluating the Past and looking to the Future

Establishing realistic parameters for Property Settlement

Book a Free Consultation with a Family Law Expert.

Moving forward

Getting legal advice early is the most important thing to do.

Why is Going to Court Expensive?

What are the Actual Costs of Going to Court?

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How Do Lawyers Charge?

What About No Win No Fee?

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Costs Ordered by the Court

The Intangible Costs of Going to Court

Is There a Better Way?

Book a Free Consultation with a Family Law Expert.

How Does Mediation Help?

How Do I Make The Decision?

What to Do Next

Getting legal advice early is the most important thing to do.

Book a Free Consultation with a Family Law Expert.

Getting legal advice early is the most important thing to do.

Work out the key issues beforehand

Book a Free Consultation with a Family Law Expert.

Have your documents organised

Take a realistic view of your options

Be prepared to give some ground

Getting legal advice early is the most important thing to do.

How does mediation help?

Considering a Property Settlement?

Making the agreement formal

The advantages of family law mediation

What to do next

Getting legal advice early is the most important thing to do.

Mediation is less stressful because there’s Less Conflict

Thinking about separation or divorce?

It’s better for the Kids

Mediation is meant to help both of You

Involved in a Parenting Dispute?

Workable Relationship in the Future

It Makes Dollars and Sense

Getting legal advice early is the most important thing to do.

Preparing for a Mediation Property Matter

The To-Do List for a Property Settlement Mediation

Considering a Property Settlement?

Have Property Settlement Options in Mind

Getting legal advice early is the most important thing to do.

How can a lawyer help with family law mediation?

Getting legal advice early is the most important thing to do.

What is Mediation?

Need some information that relates to your circumstance?

What is Conciliation?