When we talk about mediation versus court, there’s a lot of focus on the fact that mediation can save time and money. Experienced mediators know that there’s an even more important benefit. Flexibility. Mediation allows parties to discuss hundreds of options. If you go to court, those are limited to a very few.
In fact, if you surveyed most judges, they’d rather the parties come to their own agreement, because they understand that the options available to mediating parties are wider than the ones available in court.
By way of illustration, here’s how mediation can offer a creative solution to three common questions that arise when a relationship breaks down.
Who keeps the matrimonial home?
Where a couple jointly own the matrimonial home, and have both lived there with the children, it’s common for both parents to desire to retain that home. It’s obviously not a situation where both can live there, so how do you resolve that dispute?
If you go to court, there are only three options: the wife keeps the home, the husband keeps the home, or it gets sold and the proceeds divided.
In mediation the parties can explore all the options, without being limited to what a court would decide. Perhaps one party stays in that home for an agreed period until the children have finished school, or reach a certain age, and after that the house will be sold? That can be a real win for everyone.
The children get stability while they’re still at school, and both parents get the benefit of knowing that their kids have that stability. Once they’re grown and have left home, that four bedroom house might be too big for the parent who remains in the house anyway. And since the house will probably increase in value over those additional years, the other parent benefits from that as well.
Such an agreement can be a win-win, but if you go to court it won’t be available to you. Mediation offers the opportunity to find a solution that benefits everyone.
How will the children be supported?
When two parties separate, living expenses go up. You now need to pay the original set of expenses, plus rent or a second mortgage for the party who moves out. It’s often challenging for people to stretch the budget to meet all of those costs, particularly if they have children who are involved in sports or music or other extracurricular activities.
One option is that the parties can agree to enter into a private Child Support agreement. You might agree that there are things you’ll pay for in the future, like education or sporting events. Instead of paying that money over now, you can put it in a child maintenance trust and then distribute it when expenses arises. You can even transfer an investment property into a trust and use the rental income for child expenses. You’ll get tax benefits, which helps with the budget, and you’ll have the security of knowing that the money is already there for when your children need it.
No court has the jurisdiction to order a child maintenance trust. In mediation, though, it’s just one of the possible solutions on the table.
Who will the children live with?
If both parents live and work close to one another, this can be straightforward. Where it gets tricky is where one parent wants to move interstate or even overseas, or they have a job that requires relocation such as a Defence Force posting.
Each parent has the ability to live wherever they want, whenever they want. However, they can’t just pack up the suitcase and take the children with them without either the consent of the other parent or the permission of the court.
So if someone does want to move, the question is, do the children go as well? If the other party stays where they are, what does that look like in terms of shared care?
If you go to court, the decision a judge will make might not be what either parent wants. The judge’s job is simple. It’s about these children first. And that’s what they have to prioritise regardless of what wish each parent might express and what difficulty the ordered arrangements might cause for one or both parents. That can involve people having to get children across the country at different times. And that can be difficult even in normal times. With COVID, because of border lock downs, some parents haven’t been able to see their children in almost 12 months.
Mediation allows parents to explore more alternatives. Perhaps one parent might agree to change their employment so they can stay close, but there’s a financial adjustment to allow for that.
One parent may relocate with the children, with the other one following in a year or two. The discussions are confidential, and parties can put forward any and all alternatives. The solution may not be perfect, but the chances are good that it will be better than a court ordered outcome.
If you’re prepared to put down the sword, put aside your differences of opinion and look at what’s best for the whole family, instead of asking ‘what about me?’, you can get a better outcome for everyone.
To discuss your matter with our experienced mediation team, please get in contact with us at Murdoch Mediations.