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Dean Bainbridge, Mediator
Mediation of family law property disputes
Mediation is a type of alternative dispute resolution, that parties to a dispute can engage to settle their legal issues. In a family law context, mediation can be undertaken for parenting matters, property matters or both. A feature of mediation is that an independent, third-party facilitator will run the mediation and assist parties to set an agenda and reach agreements. Mediation can be done with the assistance of lawyers, or with parties alone.
The format of the mediation will be determined by the Mediator based on the parties preferences and the circumstances of the case. For instance, it may be that a “round table” event will be an effective way to conduct the mediation so the parties can be in the same room and discuss matters face to face. In other cases a “shuttle” mediation, where the mediator moves between the parties and the parties don’t come into contact, might be best.
For family law property mediation, it is worth noting that you can participate in mediation prior to commencing any litigation in the Federal Circuit and Family Court of Australia (FCFCOA). You may be in a position to resolve your matter on a final basis, before going down that path, a choice which will likely save you time, stress and legal fees.
Even if litigation has already been commenced, it is often appropriate for parties to mediate in order to resolve their dispute and get out of the Court system. The Court may direct parties to participate in a private mediation, outside of Court, or in a Court ordered property mediation (called a Conciliation Conference, see below).
Mediation is a very useful tool in assisting parties to resolve their disputes. Even if a matter cannot be settled or finalised in its entirety, mediation can still provide valuable information to a party, and can help to narrow the issues in dispute. This might mean that continued negotiations or fine-tuning can then finalise a settlement, or at the very least, the matters to be determined by a Court could be limited.
A key benefit of mediation is that you, as the party to a dispute, will be in the driver’s seat – you (and/or your legal representative on your behalf) will be able to make proposals, negotiate and come up with creative solutions to problems that you have a unique knowledge of. In this way, the parties to a dispute really own the process and outcome of a mediation, which is not how a great many people feel once they are in the midst of litigation.
Preparation is key to a successful property mediation, and is a significant part of the work that your lawyer will do with you. This could start with guidance as to what type of mediation is best for you, which mediator to choose and when to mediate. Matching the right mediator to the parties, and the circumstances of your case can be really important.
It is imperative that a draft Balance Sheet is agreed before a mediation, that any necessary valuations have been undertaken and that financial disclosure has taken place. It will be difficult to successfully mediate if the value of the marital home is still in dispute, or if the value of a party’s superannuation interest or bank accounts have not been disclosed.
You should come to mediation with information that is relevant to facilitating the outcome you seek, for instance an idea of your borrowing capacity or current market conditions. You should consider the types of proposals you wish to make, and your thresholds (i.e. your bottom line). At the same time, it is also important to come to mediation with an open mind and genuine intentions to try and resolve your dispute, in good faith.
While mediation for property disputes is not strictly required (as it is in parenting matters), prior to commencing proceedings in the FCFCOA you are generally required to confirm with the Court that you have taken genuine steps to resolve your dispute. Attempting mediation, if appropriate to do so, is a key way that parties will take those steps to try and settle a matter prior to filing an application with the Court.
If your property matter does proceed to Court, it is very likely that the Court will direct the parties to attend mediation. The Court may make orders for parties to attend a private mediation outside of Court (often if the net value of a property pool is high), or may direct the parties to attend a Conciliation Conference.
A Conciliation Conference is a property mediation facilitated at the Court by a Judicial Registrar, usually over half a day to a day, and often over video conference. Attendance is compulsory if the Court makes these Orders, and parties should make genuine efforts to reach a resolution. These Conciliation Conferences are very effective, and matters will often settle on a final basis at these events.
Sometimes, mediation will not be an appropriate way to resolve a property dispute. This might be the case if there are significant legal questions in dispute, that need to be determined by a Court. Similarly, if there is a significant power imbalance between the parties, or a history of family violence, then mediation may not be suitable.
At Bainbridge Legal we appreciate that mediation can be a very effective and efficient way of resolving your family law property dispute while avoiding litigation. We are experienced family lawyers who have participated in a number of forms of mediation with our clients, with great success. We understand the importance of preparation in obtaining good outcomes, as well as the value of communication and negotiation skills, which are imperative during mediation.
If you would like to speak to one of our lawyers about your family law property dispute, and how to commence the mediation process, please get in touch with us today on 1300 148 110.
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