A cost-effective alternative to court
After separating, you could find yourself at loggerheads with your former partner or spouse on exactly how all property should be divided between you. Negotiations may be bouncing between your lawyers, with no common ground achieved. Without agreement, you could file court proceedings but learn costs would increase dramatically. As well, it could be years before a judge can give a decision on how your property will be divided.
Mediation, on the other hand, could be arranged within weeks. It offers a practical alternative to reach a conclusion on how property should be divided between you and your former partner.
What is mediation?
The mediation process requires the appointment of an impartial and independent person (the mediator) whose role is to help the parties find a solution which is satisfactory to both.
The mediator does not decide an outcome. Only you and your former partner can make the final decision, but the mediator will help guide both of you towards making those decisions and resolving matters completely.
Where to start
The first step is to find a mediator. You and your former partner must appoint the mediator jointly. Your lawyers will be able to help you to get an experienced family law mediator.
You will both sign an Agreement to Mediate. This agreement will cover all the ground rules of the mediation process, your commitment to participate in good faith, costs, who is paying what and, most importantly, an agreement that the mediation is 'without prejudice'.
The concept of 'without prejudice' is key to mediation. It means that neither of you can use what you discuss at mediation against the other. It is vital that you and your former partner are free to fully and frankly engage and make proposals without fear of them being used against you later.
Before mediation starts, the mediator may sometimes hold a brief tele-conference with your lawyers to identify what legal issues need to be dealt with and how the mediation will run.
What happens during a mediation will depend on several factors: the nature of the issues, your personalities and your willingness to engage. No two mediations will be the same.
Confidentiality: Similar to 'without prejudice', confidentiality is key. Everything discussed in the mediation is confidential.
You can expect breaks. Throughout the mediation you will be given the opportunity to take a break and privately discuss the issues with your lawyer.
Be prepared to listen. You might be surprised to learn something you consider minor is a major issue for your former partner. A "thank you", "I'm sorry" or "I am grateful for…" could save you thousands in legal fees.
Be prepared to engage. Remember the 'without prejudice' concept. Holding back will mean you won't have the opportunity to address what is important to you. If you want to discuss topics such as school fees, the family pet or the home being retained for the children – do so.
Think outside the box. Agreements reached in mediation are created by the parties. This means you can create solutions which may be unavailable should your dispute be taken to court.
Do I need a lawyer?
Yes, you do. For an agreement dividing relationship property to be binding, you will each need to receive independent legal advice on the effect and implications of the agreement.
The goal of mediation is to reach agreement. If the mediation is successful, you can expect to sign an agreement before leaving the mediation.
How long, how much?
The timing of mediation will vary from case to case. Some may take half a day, others two days.
There is no hard and fast rule about cost and you can expect prices to vary throughout the country. Your mediation team will be able to give you an estimate of the mediation cost. It's good to remember the costs will be shared between the two of you.
Is mediation for me?
Mediation is a tool not often considered for settling relationship property disputes. However, the reduction in costs, time and the ability to take control of the decisions that affect you means that mediation may be more appropriate than the expensive and lengthy alternatives.
If you think that mediation is appropriate for your situation, we are very happy to talk with you about this.