You can arrange a mediation at any point in the separation process. Mediators see people who have come to them directly, or who might have been referred by their accountant, financial planner, or family member. It’s also common for people to see a lawyer for initial advice, discover that they’re not too far apart on reaching an agreement and go to mediation to iron out those last wrinkles.
No matter where in the process you are, preparing for your mediation is key to a successful outcome.
Understand your financial situation
If you’re planning a purely financial mediation, the most important aspect is that parties are properly prepared. That means that they’ve exchanged all necessary documents such that everyone knows what there is to talk about when the mediation occurs.
For example, do the parties agree on the value of the house? If they can’t, they need to agree on how to value it — will they get an appraisal from a real estate agent, or use an expert valuer? It’s very important that the parties agree on what assets there are, including cars, boats, and superannuation funds, as well as any debts. If there’s a family business, that needs to be valued. Sometimes there might be a self-managed superannuation fund that hasn’t lodged a tax return for a couple of years, so that needs to be brought up to date.
If you come into mediation and you disagree on how much property there is to be divided, that makes it very hard for the mediator and can lead to disappointing outcomes. It’s not the mediator’s role to decide what the value of something is. So it’s important to get independent evidence to narrow that dispute.
Parties should be encouraged to get independent legal and/or financial advice about what they can afford to do. Can they afford to keep the home if they buy the other person out? Can they afford to keep an investment property? How will they be taxed if they keep something or sell something? You need a realistic picture of your financial situation so that you can make informed decisions at the mediation.
Meet your mediator ahead of time
There are a few reasons why it’s valuable to have a pre-mediation session with your mediator. It’s a great opportunity to discuss things that might be of concern to you and the things that are your priority. It can also help to settle some nerves and make sure you really understand the mediation process. You might realise during that session that you need to get some more information before the mediation itself.
For mediators, it’s a way of checking that the mediating parties are actually ready to give it the best opportunity to resolve. Some people are still in an adversarial mindset which isn’t necessarily going to get them the outcome they want.
One of the things your mediator will go through, either at the pre-mediation session or the mediation itself, is to explain the alternatives. If people understand what’s really involved in going to court, that’s a good incentive to really try their best to get a mediated outcome.
A little preparation can save a lot of time
If you take your dispute to court, you have to expect some long delays. Timelines vary across the country, but in Queensland, it’s often three to four years from when you commence your proceedings to when you get a trial. Even after the trial, you could be waiting another year or longer for the judgement.
In contrast, a government-funded body might have a waiting list of up to six months, while private mediators would be able to see people within two weeks to a month. If you can reach a resolution to the dispute on the day of the mediation, it can be sometimes be documented immediately. From there, it can be either lodged with the court or turned into a binding financial agreement, depending on the circumstances of the parties.
Although mediation is far more efficient than going to court, it can be made even more efficient with preparation. If you already know the value of your property and have financial advice on the effect of the agreement, it’s more likely that you can come to a final resolution on the day. Otherwise, the parties might have to go and get that extra information and come back for a second session.
To discuss the mediation process or find out what you can do to properly prepare for mediation, please don’t hesitate to get in touch with us.
This publication has been carefully prepared, but it has been written in brief and general terms and should be viewed as broad guidance only. It does not purport to be comprehensive or to render advice. No one should rely on the information contained in this publication without first obtaining professional advice relevant to their own specific situation.