Mediation Explained

The Mediation Process

 

Mediation can occur in different ways including:

1.     Everyone at the same location. Generally, there will be three rooms…one for each party and one for the mediator. There are two main options:

a.    Everyone starts together in the mediator’s room. After this joint session, each party and their lawyer go to their separate room, with the mediator coming to them for discussions as appropriate. Everyone may or may not get back together for a further joint session.

b.    The mediator meets with the lawyers in the mediator’s room. After this session, each lawyer reports back to their client. The mediator comes to each party for discussions as appropriate. The parties don’t get together in the same room.

2.     By Zoom. The options are as set out in point 1… the rooms are ‘digital’ rooms rather than physical rooms.

You should set aside the whole day. This may mean making arrangements for your children.

Property Settlements & Mediations

 

Property settlements & the law

The law has the following process in deciding a property settlement:

1. Compile a list of assets and debts with accurate values.

2. Assess the contributions made by each party. Contributions include

a. Financial eg:

i. Assets owned when you commenced living together;

ii. Lump sums received during the relationship eg inheritances, gifts, compensation payments; and

iii. Income earned during the relationship.

b. Parenting & domestic contributions.

3. Assess the factors in s75(2) of the Family Law Act (often called assessing the future needs of each party). This includes taking into account:

a. Arrangements for the children;

b. Income of each party; and

c. Health of each party.

4. Ensure that the division is “just and equitable”.

The law requires each party to make “full and frank” disclosure of their financial position to the other party.

What you should do prior to mediation

To increase the likelihood of coming to a resolution at mediation, you should do the following prior to mediation:

1. Get valuations or appraisals of all the important assets and debts. This might include:

a. House: get 2 or 3 written appraisals from real estate agents or agree with your former partner on a valuer and get a valuation.

b. Car: go to https://www.redbook.com.au/ and get an appraisal.

c. If capital gains tax may be an issue, get a written assessment from your accountant.

d. Superannuation: get an up to date statement.

2. Exchange important documents with your former partner. For example:

a. The documents listed at point 1.

b. Bank statements for an agreed period (perhaps from just before separation, depending on how long ago that was).

c. Documents about any asset that you have disposed of since 12 months before the date of separation;

d. Documents about any lump sum that you received eg;

i. Inheritance: the letter you received from the solicitor advising the amount that you received; and

ii. Compensation payment: the letter you received from the solicitor advising the amount that you received.

e. Documents advising your income, eg your last 3:

i. Tax returns;

ii. Notice of Assessments; and

iii. Payslips.

3. Get the following advice:

a. Legal advice as to the likely outcome;

b. Financial advice. For example, are you better maximising your cash component or your super component?; and

c. If you are hoping to receive the house, then get advice from a bank or mortgage broker about your borrowing capacity.

Documenting a settlement

It is always wise to document a property settlement in a way which is binding. This can be done by a financial agreement or by consent orders made by the court. You should get legal advice.

Getting advice

It is always a good idea to get legal advice before attending mediation. You can find a solicitor via the Law Society of New South Wales at www.lawsociety.com.au or via the local law society in your area (in Newcastle, www.newcastlelawsociety.com.au )

You may want your solicitor to come with you to mediation.