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litigation or mediation

Litigation or Mediation? Choose Very Wisely!

At the outset, let’s be very clear, mediation is not litigation. Litigation, of course, conjures up in the minds of many people, a battle to the end, with no real winners or losers, but rather most likely two battle fatigued people who are substantially poorer and more emotionally drained than they were when they chose this path. Conversely, mediation isn’t about a battle, it’s about acknowledging things for whatever reason haven’t worked out, putting it to one-side and agreeing to find middle-ground promptly on the things that count most, property and parenting, so you can both get on with your lives.

When Mediation Isn’t For You

If this doesn’t sound like you and you want to square up with your ex-spouse for all they have done to you, wanting them to pay for their indiscretions or failings, then choose litigation. But do understand that even litigation will require you to attend a mediation to try and resolve things. It’s well noted that judicial officers in the family law environment dislike having to decide matters themselves when it’s apparent to them that you and your ex-partner could have done so via mediation.

When Mediation is For You

If you and your ex-partner see the wisdom in resolving your family law dispute mediation sooner and without considerable legal fees, that’s a great place to start. At this point, it’s useful to consider what are the real issues that you and your ex-partner don’t agree on. Is it property or parenting matters or something else?

In the case of property, you need to know a few things. Most importantly, there are strict time limits that apply to these matters.

Settling property matters should be given some priority because Courts take into account assets that you currently have as well as what assets there were at separation. Courts don’t necessarily recognize informal agreements and may ignore them altogether so it’s important to get advice to make sure that your agreement will finalize your matter. WE mention Courts in this context because once an agreement is reached during a mediation, that agreement will need to be drawn up and officiated by the Court. This will ensure that the agreement is now legally binding.

If you and your ex-partner were married, you MUST finalize your mediation property matters, or apply to the Court for Orders within 12 months of the date of divorce. In the event that you and your ex-partner were in a de facto relationship, this MUST occur within 2 years of the date of separation.

Will Mediation Work for a Property Settlement?

In a family law mediation context, in considering a property settlement, the initial step is always to clarify what property there is, and what debts or liabilities exist.

The next step is to work out how each of you contributed to the family both financially and of course, in non-financial ways. The third step is about assessing any special circumstances that require some adjustment to the property settlement amount, for example, it might be the case that children need to be schooled by one parent, etc. The final step is to determine the fairest way of dividing the property and debts given the contributions of the parties and any future needs identified during the process.

At Mediators Australia, we work collaboratively with Family Lawyers, Financial Advisors, Accountants and others to ensure the full picture of the property pool is considered during the mediation.

What Should You Do Next

The best way to find out if mediation will suit your particular circumstance, simply contact us for a free, no-obligation consultation.

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