Property Mediations

Continuing in our mediation series, this week we look at property mediations.

Do I need to have legal advice? 

There is no requirement for you obtain legal advice before attending a property mediation, but we strongly recommend you do.  

Having legal advice before your mediation means you go into the mediation prepared and confident. A solicitor can also help you understand the asset pool and your likely entitlement. 

Mediations can be done with solicitors present or without solicitors. For property matters, we generally suggest having solicitors present as it can be difficult to work out whether an offer is fair, just and equitable. A family law solicitor can assess your matter and provide you advice about what a reasonable settlement looks like, and offer suggestions on how an agreement may work. 

What Should I do before mediation? 

Both parties have a duty to provide a full and frank financial disclosure. This helps the parties’ establish their asset pooI. 

A full and frank financial disclosure means to exchange documents to support any assets, liabilities, income, and superannuation you have at that time. You would also consider what assets and liabilities you brought into the relationship.  

The parties should also provide details of their financial and non-financial contributions during the relationship. Financial contributions can include wages, government payments, gifts, and inheritances. Non-financial contributions can include home-maker duties and caring for the children of the relationship. This information is relevant to each party's entitlement to the property pool. 

For more information on your duty to disclose a full and frank financial disclosure, see our blog on Duty to Disclose. 

What happens during a property mediation? 

There is no set structure to conduct a property mediation. The mediator will conduct the mediation in a way that best suits the situation and circumstances of the parties.  

Typically, the mediator will work with the parties to clarify what assets, liabilities and superannuation are in the pool and the value of each item.  

The parties may then discuss what they want to keep from the property pool, and what may need to be sold and whether any adjustments need to be made. If an adjustment is needed, the parties may discuss how that happens- whether it is cash, superannuation or transferring an asset between parties. 

The mediator will assist in keeping the mediation on track and identifying any key issues in dispute.  

If your solicitor is attending the mediation with you, they will give you advice on what you're entitled to throughout the mediation to ensure you're getting a percentage that is fair. 

The idea of a mediation is to negotiate and compromise to achieve an outcome and avoid the unnecessary costs and time wastage of Court proceedings. It is counterproductive to attend a mediation without the willingness to compromise. 

Outcomes 

If the parties reach an agreement, the mediator will help you put the agreement in writing. That agreement can then be turned into consent orders. 

If the parties do not reach on agreement, they may agree on a plan to progress the matter. It may be that the parties need to get more disclosure, have an asset valued or list an asset for sale. Sometimes the parties are so far apart that the only way forward is filing an Application with the court. 

Please note: the information in this article is general in nature and is not legal advice. For specific advice about your circumstances, contact us to make an appointment with one of our solicitors.