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Mediation in property settlement cases

by | Jan 20, 2021 | Family Law

It is the Court’s expectation that parties involved in Family Law disputes utilise all readily available means to them to resolve their dispute before making an Application to the Court.

There is a general expectation before and during proceedings that parties will attempt to resolve disputes by compromise, discussion and alternate dispute resolution (ADR) if it is safe to do so. ADR extends to negotiations through lawyers, conciliation conference, mediation or Family Dispute Resolution and arbitration. More often than not, ADR services tend to be a more affordable, less stressful and timely means for resolving disputes, while allowing you greater control, management and input into the process and the outcome.

Communications in the course of dispute resolution are, except in exceptional circumstances such as where there has been a threat to someone’s life or health, confidential and inadmissible in any Court.

Today, this article will only discuss the mediation process.

Mediation is a process where the parties are assisted by a trained and qualified mediator to help resolve their dispute. It is often a more structured and dynamic form of dispute resolution than ordinary negotiation. Parties may agree to attend mediation with a mediator with regards to their financial and/or parenting case.

Mediation can take place before or after Court proceedings are commenced. Any agreements reached during mediation can be formalised by way of Parenting Plans (for parenting cases where there are no proceedings on foot) or Consent Orders (for property and/or parenting cases whether or not proceedings are on foot).

It is possible to have a support person present at mediation, together with your family lawyer, but that support person does not directly participate in the process. During mediation, the parties are both given a chance to present their case. Ordinarily, mediation occurs with the parties, their family lawyers/Counsels and the mediator in one conference room. There will be several scheduled breaks where the parties ‘break out’ into separate rooms to consult their family lawyer for advice, discuss options and settlement offers. In cases where parties prefer to be in separate rooms, such as where an active Intervention Order is in place, mediation can be conducted on a ‘shuttle’ basis where parties are in separate rooms and the mediator moves between the rooms during the mediation.

Mediation is generally scheduled for a half-day or full-day session. It is important to be well-prepared leading up to mediation and this includes exercising proper disclosure, ensuring the value of the assets are up to date and providing the mediator with your Mediation Paper/Case Outline.

Generally, the costs of mediation including mediator’s fees are paid privately and usually shared equally by the parties.

You should obtain legal advice as to the ADR options available to you and which option will best meet your needs. For more information or assistance on mediation in property settlement cases, please do not hesitate to contact one of our experienced Family Lawyers at Nevett Ford Melbourne on 03 9614 7111 or at melbourne@nevettfordlawyers.com.au.