What Is Property Settlement Mediation?
When a couple splits there are a number of issues that need to be resolved. Prominent amongst these is how the individual and joint assets and liabilities of the couple will be split. Property settlement mediation is where split couples can discuss and resolve this splitting and reach agreement about how this will happen and on what basis.
What Assets Are Covered in Property Settlement Mediation?
All individual and jointly held assets are considered. This includes assets held before the couple came together as well as assets purchased while in the relationship. By looking at all assets the split couple, with support from the family mediator, can ensure that a more detailed, thorough view of assets emerges in terms of contributions to the relationship.
How Does Property Settlement Mediation Work in Australia?
Property settlement mediation is, like other forms of family mediation, based on the best interests of the children. Each situation is unique and no two settlements are ever exactly the same. While many people believe that the split is 50/50 this is nothing more than a myth. This belief fails to take into account the contributions to the relationship, the current and future needs of the children, and the notion of equity.
The following is an outline of how property settlement mediation is generally undertaken.
Step 1- Introductions and Opening Statements
This is where the family mediator sets the scene. They provide and reinforce information about the process and confidentiality as well as ensuring a safe, neutral environment for both parties. It’s at this step that both parties have the opportunity to voice their perspective on what is in dispute. By doing this the mediator has firmly established the what and how of the mediation.
Step 2- Information Gathering and Disclosure
The family mediator supports the parties to identify and document all individual and jointly held assets and liabilities. This step is supported by the preparation done by each party. Full disclosure is essential to ensure an accurate figure for the net property pool is arrived at and agreed upon.
Step 3- Assessing Contributions
It’s at this point that the family mediator has the parties outline both the financial and non-financial contributions to the relationship. Financial contributions may include wages or salaries, dividends from shares, rental returns on investments, business profits, and inheritances as well as the myriad of other forms financial input can take. Non-financial contributions might include home renovations carried out, home-making, and parenting.
Step 4- Considering Future Needs
A very interesting step. Here the family mediator seeks input from the parties as to the future needs of the split family with a focus on the children. Needs could include, healthcare, education, the cost of hobbies or sports, and general day-to-day living expenses. This identification also takes into account the earning capacity of the parties as well as any potential impacting factors such as age and health of the parties.
Step 5- Just and Equitable Settlement
The net asset pool has been established, contributions to the relationship have been discussed, and the future needs have been identified. It’s at this point that the negotiation and discussion takes place, to reach agreement, on a fair and reasonable settlement.
Once decided upon the agreement will be drafted and documented for both parties to sign.
Property Settlement Mediation vs Going to Court
At Resolutions Australia we always encourage potential clients to attempt mediation rather than seeking a Family Court hearing. The reasons for this are many and varied including:
- Cost. A Family Court hearing will cost many thousands of dollars compared to mediation which, at Resolutions Australia, will cost just $800 per client.
- Timeliness. The Family Court is backed up. A first call, full hearing, handing down of orders, possible appeals… This pathway is measured in months or more usually, years. With mediation the issues can be resolved in a matter of a week or two from first enquiry.
- Decision making. Clients considering court need to realise that they have no decision making power. The judge will take all the evidence and make a final decision. In this regard court is a disempowering experience. Property settlement mediation is a dialogue, a negotiation, and a collaborative effort to ensure that the best interests of the children are upheld. The parties make the decisions.
- Emotional cost. Property settlement mediation is a collaborative effort completed in a timely manner, at a low cost. This ensures that the clients can resolve issues and move on with establishing their new lives with minimal emotional fallout. The alternative, via the Family Court involves a ‘battle’ between ‘sides’ that may take years to resolve through decisions made by others and at a significant cost to each party. This process can be hugely stressful for all, damages the relationship between the parties, and causes potentially harmful levels of emotional damage to all concerned.
At Resolutions Australia we believe, through experience, that resolving issues at the lowest and earliest opportunity is fundamentally healthier and more effective for all those impacted.
How to Prepare for Property Settlement Mediation
The question of how to prepare for property settlement mediation is an interesting one. When it comes to the content of mediation parties need to ensure they have as much detail to hand of their financial situation. This includes property valuations or estimates, bank and mortgage statements, business and trust accounts, crypto balances… the list can be a long one!
Having hard copies printed out is valuable as clients have the information immediately available. No log-ins, no screen shots, no files that don’t upload. At Resolutions Australia we recommend that all the documentation is saved as pdf’s or images and are forwarded to the family mediator prior to the mediation session.
It is also important the clients present to property settlement mediation with thoughts and ideas around the splitting of assets and liabilities with a focus on the best interests of the children.
These thoughts and ideas should recognise increasing costs as children age and what those may be. Ideas should note that if one parent has substantially more responsibility time with the children they’re likely to need a larger home and car, and will have greater weekly costs.
Remember, the focus is on the children and their needs now and into the future.
So, you’ve got your paperwork in order, you’re thinking about the best interests of the children. What now in terms of preparation?
The answer is ‘You.’ You need to make sure that you’re feeling positive and confident about the process. You need to remember to listen actively, be flexible, no where you stand on potential issues, and be able to leave any emotional baggage at the door. Many clients frame the mediation as a business meeting and act accordingly. Some use plenty of short breaks to support themselves to remain calm and focussed. Others use affirmations to remind themselves of why they’re mediating and what they’re capable of ‘for the kids.’
The basics are important. A good breakfast, water bottle with you, wearing comfortable clothing, and being in a setting you feel safe and secure in (if online mediating.)
What Happens After Property Settlement Mediation?
Once your property settlement mediation is complete you’ll have your agreement in hand and then it’s time to put the agreement to work. This can well mean arranging sales, getting legal valuations, transferring funds, contacting different businesses and agencies, changing names on accounts, and keeping the other party in the loop on what’s happening just as they should with you. Essentially you’re doing what the agreement is saying!
You may also ponder having the agreement made into a consent order and this means meeting with your lawyer who’ll be able to explain the steps and act for you. In effect it means turning the property settlement agreement into an enforceable, legal document.
How Much Does Property Settlement Mediation Cost?
At Resolutions Australia we charge at the lower end of costs when compared to similar private organisations. For $800 per party Resolutions Australia will provide an introductory call or email where we hear about your situation and answer any questions you may have. We then conduct an intake session of 60-90 minutes for each client where we find out more about you, your family, your finances, and of course offering answers, education, and support. Following intake is the mediation session which is a standard 4 hour block with the opportunity to go longer if need be.
While government funded organisations may be cheaper they are for a reason. Your waiting times are usually significantly longer (months not days), you may have to deal with several different staff (receptionist, mediator for the enquiry call, intake staff member, and your mediator on the day,) and your mediator may have been given your file on the day and not be fully aware of the intricacies and nuances of your particular situation. Couple this with a short 2-3 hour mediation and it’s easy to see how this government funded model isn’t ideal for resolving issues of significance.
If you’re astute enough to recognise Resolutions Australia’s position as Australia’s leading online family mediation service and our points of difference (cost, timeliness, expertise, and appointment flexibility) then we urge you to contact us and get your new normal happening as soon as possible!
Frequently Asked Questions
Below are a few questions and answers related to property settlement mediation. These have been asked by clients and we felt it wise to include them here.
And remember, you’re always very welcome to get in touch with us if you have any questions regarding family mediation.
Is property settlement mediation legally binding in Australia?
No. It is crucial that parties understand that their property settlement mediation isn’t legally binding but can be made legally binding.
Family dispute resolution (family mediation) isn’t legally binding. It is morally binding which means it relies on the parties to act in good faith and carry out what has been agreed too.
For many clients this works perfectly acceptably with no further issues and both parties save on substantial legal costs.
Once a family mediation agreement is reached one or both of the parties can hand this agreement to their lawyer(s) who can then approach the Family Court and have it turned into a consent order. The wording and detail of the consent order may not be exactly as it was on the family mediation agreement. The now legal agreement has become legally enforceable for both parties with consequences for not following the orders. Consequences can be decided by a judge. Also, now the agreement is a legally enforceable consent order, any changes a party wishes to have made must be done via the Family Court.
Do I need a lawyer for property settlement mediation?
No, no lawyer is required for property and financial mediation (or any type of family mediation for that matter!)
If both parties agree then lawyers are very welcome to attend the property settlement mediation, however they are there to advise their client and not take part in the actual mediation. This means they won’t be speaking for the client and it’s likely the family mediator will have little direct contact with them.
Can property settlement mediation be done online?
At Resolutions Australia we’ve facilitated numerous property and financial mediations online. It is a simple, user-friendly format and we’re able to have the numbers and line items documented online live. We find that using the online format helps decrease conflict, is less stressful for parties than in person mediation, and produces equitable, fair agreements.
What if my ex-partner refuses to attend mediation?
This does happen from time to time and for a range of reasons. With an ex-partner not attending mediation the family dispute resolution practitioner is able to issue the party who does attend a section 60i certificate. This certificate will note the fact that the other party has failed to attend. If the next step is the Family Court then the party attending can have the certificate presented indicating that they were present and wanting to mediate whereas the other party wasn’t. This may well have an impact on the awarding of costs e.g. the judge may order that the other party pays the costs of the party who wanted to mediate.
How long does property settlement mediation take?
At Resolutions Australia we have successfully mediated numerous property disputes within the standard 4 hour session we provide. Some go longer, and some shorter. We’ve had successful agreements in an hour and others that have taken 6-8 hours.
The most important factor impacting time taken is the parties’ flexibility, focus on the children, and providing full, detailed disclosure of assets and liabilities.
Can I mediate superannuation splitting?
Absolutely you can. Superannuation can be treated like any other asset and family mediation around this is common. That doesn’t mean that you’ll get a lump sum paid out, or a cash payment as there are a number of rules and regulations around superannuation. Our clients usually end up with any benefit being paid into their own superaccount.
