Checklist on Separation: Preparation for Mediation
The Family Law Act requires parties in dispute, whether re finances or children, to engage in pre-dispute steps before filing documents in Court and seeking to litigate the matter (see Rule 1.05 and Schedule 1 of the Family Law Rules).
Types of Mediation
There are different models for the mediation process as follows:
- Advisory; and
- Determinative; or
- A combination of the above three models.
The most frequently used model in Family Law matters is facilitative. The key components of this process are:
- Communication with each other, exchanging information and seeking understanding;
- Identification, which clarifies and explores interests, issues and underlying needs;
- Consideration of your alternatives;
- Generation and evaluation of options;
- Negotiation with each other; and
- Reaching and making your own decisions.
A successful mediation, however, requires preparation. We would suggest you undertake the following steps prior to attending the mediation:
- Seek legal advice as to your rights and responsibilities.
- Prepare a detailed History of the Relationship or Marriage.
- In a financial dispute, try to reach agreement prior to the mediation as to the assets and liabilities. Mediation isn’t about a method of reaching a solution to disputed facts. The purpose of a mediation is to focus on settlement. Therefore, it is important that prior to attending the mediation, areas that could be disputed are minimised so that the focus remains on settlement.
- Exchange relevant financial records at least 14 days prior to mediation. These will include such documents as the following:
- Passbooks and bank statements for the previous 12 months for all bank and credit union/building society accounts;
- Details and records of any investments, including stocks and shares;
- Income Tax Returns and Notices of Assessment for the previous 3 financial years;
- Social security pension or payment details;
- Appraisal/valuation of real estate;
- Appraisal/valuation of chattels, including car(s);
- Records/details of any life assurance or disability insurance;
- Copies of the last member's account statement of any superannuation fund and the last Financial Statement of such fund;
- Copies of Financial Statements and Tax Returns for the last 3 financial years of any relevant partnership, trust or company (not being a public company);
- Trust Deeds for Trusts and Self-Managed Superannuation Funds;
- Leases – residential and commercial;
- Any documentation which evidences Capital Gains Tax and/or income tax losses carried forward;
- The Constitution for any relevant company;
- All documents relating to the purchase of any property, residential or commercial, including contracts, settlement statements, solicitor’s accounts, stamp duty payments etc.
- If there is a dispute over the value of certain assets, engage a jointly agreed expert to undertake the valuation report which should be available at least 7 days before mediation.
- If it has been agreed to have a private mediator, you need to reach agreement with the other party as to how the mediator’s fees are to be paid. It is normal that they be shared equally but sometimes one party will pay them all upfront and the other person will reimburse their one half share, from their settlement sum.
- A summary of the matter should be provided to the mediator at least 7 days before mediation. This brief should include a list of the issues in dispute, if financial, a table of the assets and liabilities, the parties’ desired outcome, a brief history of the family and any settlement offers made to date.
- If the mediation is primarily focused on a parenting dispute, you should ensure that the mediator is a registered Family Dispute Resolution Practitioner. These people can issue Section 60(I) Certificates pursuant to the Family Law Act. Usually you cannot commence proceedings in the Court in regards to children without filing a 60(I) Certificate.
- A properly conducted mediation could take all day.
- You should ensure that appropriate arrangements have been made for childcare so that you can focus your attention on the mediation.
- A successful conclusion to a mediation requires that both parties attend the mediation with a genuine desire to seek resolution. This means that each person must be prepared to move from their best case scenario and move towards the middle ground in the solution options.
- It is appropriate to attend mediation with your legal representative, especially in circumstances where you consider the power balance between the parties does not favour you.
Advantages of Private Mediation
- Relationship Centres – government funded mediation centres – do not allow you to attend with your solicitor, unlike private mediation.
- Private mediation allows you to have the mediation more quickly, usually by a more experienced mediator, with the right to have a qualified advocate assist you.
- A Relationships Centre may also seek to have you attend a series of meetings whereas the private mediation can be more efficiently dealt with on one day.
- All mediations are conducted on the basis of strict confidentiality, that is any admissions or concessions or offers made will not be revealed if later litigation ensues.
It is important that you go to mediation having done your homework. You should have obtained legal advice which has allowed you to develop realistic expectations. You must be ready to settle the matter from an informed base and be emotionally prepared for closure. These factors will increase your prospects of a successful settlement. It is important that any agreement reached is documented in legally binding documentation. We recommend Consent Orders lodged with the Family Court.
This article reflected the state of the law at the time of publication. But the law is a living creation which is constantly changing and adapting. These articles should be treated as an information resource only and not as a substitute for specific legal advice in respect to your particular problems and circumstances.
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