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

1. 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 client in order to get a result which is better for them than their opponent, or the ex-spouse. In contrast, mediation 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 to discuss the relevant issues, however difficult, and methodically work through them to find areas of agreement and hopefully, a mutually satisfactory resolution.

• Workable relationship into 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 the 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 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.

The post 5 Reasons Why You Should Consider Mediation for Child Custody Disputes appeared first on Mediations Australia.

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 need of 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.

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 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 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 pay out your former partner. Or perhaps you both wish to sell up and start afresh. Family law mediation helps clarify and prioritise these issues so a negotiated settlement that is equitable to both parties can be reached.

Our 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 realise the real benefits of this form of dispute resolution.

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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 a 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 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 subsequent court action.

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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 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 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 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.

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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, co-operative 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 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 today.

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The far better way to consider your family law dispute is to be resolution focussed. In other words, whatever is the best way to resolve your dispute with the minimal amount of collateral damage and of course,  minimal expense. 

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 centered 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. — 

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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 family law mediation team.

The post What Do I Need to Disclose in My Property Settlement Dispute? appeared first on Mediations Australia.

What’s Wrong with Litigation?

Litigation is lengthy, expensive, an 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 works towards 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 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.

Read more about family law arbitration

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 and Sydney family law mediation team members at Mediations Australia

The post Nothing Alternate About Alternate Dispute Resolution (ADR) appeared first on Mediations Australia.

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, has little regard of 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 part way 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 of 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. 

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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 family law meditation team.

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