WHAT IS PROPERTY SETTLEMENT MEDIATION?
One of the things you need to look out promptly following separation, providing that the relationship is well and truly over, is the division of assets and liabilities. In the context of family law, these matters are usually referred to as “property settlements.”
SO, DO I NEED A LAWYER TO HELP ME RESOLVE THESE DISPUTES?
Definitely not! It’s often the case that family law disputes simply derive from disagreements over matters relating to children, mediation parenting matters or mediation property matters. What you pay a lawyer for (at up to $700 an hour) is to negotiate and reach an agreement with your ex-partner and when such an agreement cannot be reached institute court proceedings. The latter aspect is called, “litigation“ and it’s soul destroying, will wreak emotional havoc on you and everyone else for the period of that litigation (at least two years) and if that isn’t bad enough, you’re going to spend a lot of money getting a court to make a decision that you’re likely not going to be happy with. The average cost of a three-year litigation battle is in the vicinity of $150,000 – $300, 000. On the other hand, if there is a willingness to mediate, all matters relating to parenting, children and property can be settled swiftly and cheaply with mediation.
WHAT HAPPENS IF WE AGREE ON SOME THINGS AND NOT OTHERS?
WHAT HAPPENS IF WE AGREE ON SOME THINGS AND NOT OTHERS?
It may be the case that you and your ex-partner can form an agreement on key issues like parenting and children, but you’re not ready to agree on property. In the case of the latter, you may have no alternative other than seeking help from a good family law practice, that has a bent towards mediation to help you and your ex-partner move to that position.
SO, WHAT SHOULD I DO NOW?
Family law mediation at WHWC Mediation Services offers a free, no-obligation consultation. From there, you can decide which is the best path for you.
WHAT IS PARENTING PLAN MEDIATION?
Simply put, a parenting plan documents the care arrangements of your children. Theoretically, parenting plans are useful in that they distill an agreement between you and your ex-partner about the parenting and care arrangements of your children.
A Parenting Plan Mediation is simply the negotiation and agreement between you and your ex-partner on those matters.
WHAT’S SO GOOD ABOUT PARENTING PLANS?
In the context of family law dispute mediation, parenting plans are great for 2 reasons. They distil an agreement, but more importantly, they show a preparedness of you and your ex-partner to talk and agree on the things that matter most, your children.
SO, WHAT’S SO BAD ABOUT PARENTING PLANS?
“Bad” is probably not the right word to use. If you and your ex-partner have negotiated a parenting plan, that’s great! But, where things can become a little problematic is when circumstances change, or the relationship between you and your ex goes downhill and one or both of you contravene or breach terms within that agreement. Why this is problematic is because the parenting plan you have constructed together is not legally binding.
HOW DO WE AVOID A POTENTIAL DISASTER?
What you do, is you leverage the willingness of you both to negotiate and agree on those aspects relating to the parenting of your children, ensuring you leave no stone unturned, and you construct the agreement, but most importantly, you have that agreement authorized by the court. This document then becomes a consent order.
HOW CAN WHWC Mediation Services HELP ME?
If there is a willingness to negotiate and agree on parenting and care arrangements about your children, you’re three-quarters of the way there! Congratulations! When there is this willingness you can also leverage it to work through any other issues that may be in dispute, following the execution of the court-endorsed consent orders. At WHWC Mediation Services we will work with you and your ex-partner reach an agreement that you’re both happy with, then have that agreement signed off by the court, ensuring what was agreed becomes binding into the future or until such time, circumstances change, requiring amendments to that agreement.
WHAT SHOULD I DO NOW?
Simple! Call WHWC Mediation Services or make a time that suits you to talk with a member of our Family law mediation team. There is no cost for this service.
At the outset, let’s be very clear, mediation is not litigation. Litigation, of course, conjures up in the minds of many people, a battle to the end, with no real winners or losers, but rather most likely two battle fatigued people who are substantially poorer and more emotionally drained than they were when they chose this path. Conversely, mediation isn’t about a battle, it’s about acknowledging things for whatever reason haven’t worked out, putting it to one-side and agreeing to find middle-ground promptly on the things that count most, property and parenting, so you can both get on with your lives.
When Mediation Isn’t For You
If this doesn’t sound like you and you want to square up with your ex-spouse for all they have done to you, wanting them to pay for their indiscretions or failings, then choose litigation. But do understand that even litigation will require you to attend a mediation to try and resolve things. It’s well noted that judicial officers in the family law environment dislike having to decide matters themselves when it’s apparent to them that you and your ex-partner could have done so via mediation.
When Mediation is For You
If you and your ex-partner see the wisdom in resolving your family law dispute mediation sooner and without considerable legal fees, that’s a great place to start. At this point, it’s useful to consider what are the real issues that you and your ex-partner don’t agree on. Is it property or parenting matters or something else?
In the case of property, you need to know a few things. Most importantly, there are strict time limits that apply to these matters.
Settling property matters should be given some priority because Courts take into account assets that you currently have as well as what assets there were at separation. Courts don’t necessarily recognize informal agreements and may ignore them altogether so it’s important to get advice to make sure that your agreement will finalize your matter. WE mention Courts in this context because once an agreement is reached during a mediation, that agreement will need to be drawn up and officiated by the Court. This will ensure that the agreement is now legally binding.
If you and your ex-partner were married, you MUST finalize your mediation property matters, or apply to the Court for Orders within 12 months of the date of divorce. In the event that you and your ex-partner were in a de facto relationship, this MUST occur within 2 years of the date of separation.
Will Mediation Work for a Property Settlement?
In a family law mediation context, in considering a property settlement, the initial step is always to clarify what property there is, and what debts or liabilities exist.
The next step is to work out how each of you contributed to the family both financially and of course, in non-financial ways. The third step is about assessing any special circumstances that require some adjustment to the property settlement amount, for example, it might be the case that children need to be schooled by one parent, etc. The final step is to determine the fairest way of dividing the property and debts given the contributions of the parties and any future needs identified during the process.
At WHWC Mediation Services, we work collaboratively with Family Lawyers, Financial Advisors, Accountants and others to ensure the full picture of the property pool is considered during the mediation.
What Should You Do Next?
The best way to find out if mediation will suit your particular circumstance, simply contact us for a free, no-obligation consultation.
Does Mediation Work?
Researchers have conducted more than 50 studies since divorce mediation first appeared more than two decades ago. As one researcher puts it, the most detailed research has already been done, i.e., comprehensive research on mediation outcomes. Enough data has been collected and enough analysis conducted to begin drawing clear conclusions about whether mediation works. Along several vital axes, the answer is an unequivocal yes.
Mediation produces agreement in 50 to 80 percent of cases (Benjamin & Irving, 1995). This is the case whether the mediation is court-referred or privately placed, whether mediation is voluntary or mandatory, and whether the mediating couples had a history of domestic violence or intense marital conflict. There is some evidence that settlement rates of more than 85 percent suggest a more coercive mediation style. This is particularly likely to be a factor if settlement rates are the only criterion for judging mediation's success. In general, single-issue mediations have lower settlement rates than mediations involving multiple issues (Walker, McCarthy, & Timms, 1994).
Couples who mediate the issues of their divorce are significantly more likely to be satisfied with their divorce experience compared with teams who have finished an adversarial divorce. A final divorce, according to one study, 69 percent of mediation respondents were somewhat to very satisfied, compared to only 47 percent of opposing men and women (Kelly, Empirical Research in Divorce and Family Mediation, 1989). Interestingly, this preference for mediation was not uniform. On several issues, such as the warmth and sensitivity of the professional, adequacy of information, and satisfaction with child support, there were no statistically significant differences between mediating and adversarial couples' perceptions. On most issues, however, such as the perceived skill level of the professional, the creativity of the professional, the effectiveness of the professional in helping clients deal with anger, the professional’s success avoiding imposing his or her viewpoint on the client, impact on the spousal relationship, satisfaction with the property settlement, satisfaction with arrangements around spousal support, satisfaction with parenting schedules and structures, and understanding children’s needs and issues, mediating couples reported significantly higher levels of happiness.
In general, the difference between men and women in their level of satisfaction with mediation is not statistically significant. This contrasts with adversarial divorce, where men are significantly more dissatisfied than women with the process and outcome (Emery R., 1994).
There has been some discussion of findings that women are disadvantaged in mediation, but initial research has been discredited. A recent review of the literature spells out the chronology:
In a much-hailed experimental study, (two researchers) found that women in litigation felt that they had won more and lost less than their counterparts in mediation, whereas the reverse was true of men. More recent work by (these same researchers and their associates) has since qualified their actual results. These recent studies showed that women's satisfaction in the litigation group rose through time, whereas men’s satisfaction declined. In contrast, in the mediation group, women’s happiness, already very high on entry, changed very little, whereas men’s satisfaction increased through time. On the whole, then, women in mediation expressed greater satisfaction with both process and outcomes than did their litigation counterparts (Benjamin & Irving, 1995).
Effect on Terms of Agreement
In general, mediated agreements tend to be more comprehensive than settlements reached either voluntarily or involuntarily in adversarial court (Kelly, Developing and Implementing Post-Divorce Parenting Plans: Does the Forum Make a Difference? 1993). In general, mediation results in more joint legal custody than adversarial processes (Emery P., 1994, 1991) but not necessarily a different parenting schedule (Emery R., 1994).
Researchers have not noted a statistical difference in the treatment of child support payments. However, mediating fathers are more likely to agree to pay for “extras” for their children and are more likely to agree to help with college expenses (Kelly, Mediated, and Adversarial Divorce Resolution Process: An Analysis of Post-Divorce Outcomes, 1990).
Long-term Mental Health
Researchers agree that mediation does not seem to have any long-term statistically significant effect on the psychological adjustment of either divorcing couples or their children, whether the mediation is custody only or comprehensive (Emery P., 1994, 1991) (Walker, McCarthy, & Timms, 1994).
Cost in Time and Money
Mediating couples tend to resolve the issues in their divorce in substantially less time than that taken by their counterparts in litigation (Emery R., 1994). They also tend to spend significantly less money (Kelly, Mediated, and Adversarial Divorce Resolution Processes: An Analysis of Post-Divorce Outcomes, 1991). In one study, couples in the adversarial sample reported spending 134% more (more than twice as much) for their divorces than those in the mediation sample (Kelly, Mediated, and Adversarial Divorce Resolution Process: An Analysis of Post-Divorce Outcomes, 1990). Most reports tend to find less dramatic differences in the 30-40% range (J Pearson, 1985).
Compliance and Relitigation
Researchers generally report higher compliance rates with mediated agreements compared to agreements reached in the adversarial process. This includes parenting schedules, payment of child support and spousal support, and completing the property's final division (Emery I. B., 1994). Relitigation rates are low in general among mediated samples and are lower than in adversarial examples (Benjamin & Irving, 1995).
What remains is the more expensive and challenging task of exploring the process of mediation to learn what styles work well, and why. The little bit of research that has been completed appears to show that the mediators who are more effective in helping their clients reach an agreement are more active in structuring the process, focus more on problem-solving than on reconciling positions, discuss options and solutions rather than facts, and maintain flexible over the process of mediation that varies depending on the characteristics of their clients (K Slaikeu, 1985).
What We Don’t Know
Research is scant to nonexistent on the following issues: Should the mediator tell clients about legal matters or direct them to their attorneys? Should lawyers be present or absent from actual mediation sessions? Should the mediator welcome and deal with emotional issues or push them aside? Should mediators be directive or passive? Should mediators work individually or in teams? Should sessions be sequential, or should mediation be conducted in a marathon format? Should the parties meet together or in separate caucus rooms? Should mediators be in the same racial group as their clients, or does it matter? Should pure mediation be replaced with a med/arb system that gives the clients assurance of a resolution? All these and other questions remain to be answered as researchers explore the effectiveness and divorce mediation process.
Benjamin, M., & Irving, H. (1995). Research in Family Mediation, Review, and Implications. Mediation Quarterly, 53-82.
Emery, I. B. (1994). An Evaluation of Process and Outcome in a Private Family Mediation Service. Mediation Quarterly, 35-55.
Emery, P. (1994, 1991). The Equity of Mediated Divorce Agreements. Mediation Quarterly, 7, 347-363.
Emery, R. (1994). Renegotiating Family Relationships. Divorce, Child Custody, and Mediation.
J Pearson, N. T. (1985). A Preliminary Portrait of Client Reactions to Three Court Mediation Programs. Conciliation Courts Review, 1-14.
K Slaikeu, R. C. (1985). Process and Outcome in Divorce Mediation. Mediation Quarterly, 10.
Kelly, J. (1989). Empirical Research in Divorce and Family Mediation. Mediation Quarterly, 24.
Kelly, J. (1990). Mediated and Adversarial Divorce Resolution Process: An Analysis of Post-Divorce Outcomes. Fund for Research in Dispute Resolution, Northern California Mediation Center.
Kelly, J. (1991). Mediated and Adversarial Divorce Resolution Processes: An Analysis of Post-Divorce Outcomes. Fund for Research in Dispute Resolution.
Kelly, J. (1993). Developing and Implementing Post-Divorce Parenting Plans: Does the Forum Make a Difference? Non-residential Parenting: New Vistas in Family Living, 136-155.
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Dr Reanna Waugh PhD