How mediation can help with property settlement disputes

How mediation can help with property settlement disputes

A property settlement dispute occurs when a separating couple cannot agree upon how to best arrange the division of assets, resources and liabilities. Mediation is often used to help couples resolve their dispute outside of court, and is hosted by a professional and impartial mediator.

This article outlines what you need to know about the process of mediation for property settlement disputes.

The mediator’s role

Depending on the type of mediation you are using (e.g. facilitative vs. evaluative), your mediator will either serve as an impartial assistant to negotiations between you and the other party, or will provide recommendations and advice regarding your case.

The mediation process

The process of mediation involves giving each party the chance to speak without interruption and respond to the other party in a calm and coherent manner. There will be ample opportunity to negotiate arrangements that suit both party’s needs. Of course, if you are not willing to negotiate, mediation will not be effective and you may need to take the case to court.

Situations in which mediation may not be suitable

Despite the potential benefits of mediation, it may not be appropriate for every situation. Some examples of situations in which mediation is not recommended include:

• Where there is risk or actual violence or abuse against you or a child/children
• Where there is not an equal basis for decision making between both parties (e.g. due to intimidation or mental health/drug issues)
• Where one party refuses to engage in mediation.

Preparing for mediation

In order to be ready for mediation, there are certain steps you must take first. Some of the questions you should ask yourself include:

• Do I have urgent living arrangements in place (i.e. housing, financial support)?
• Is my ex-partner willing to engage in mediation?
• Am I able to communicate clearly and constructively regarding the issues without being overly emotional?
• Do I possess enough information regarding my obligations and rights?
• Do I feel safe being in the same room as my ex-partner?
• Do I have access to adequate funding for mediation?

If you have any doubts about any of the answers to these questions, consider having a meeting with your professional mediator alone initially. You might also find counselling helpful during this time in supporting your emotional wellbeing. Financial support may also be available to help you afford mediation services if needed.

Getting legal advice

Legal advice may also be useful in understanding your legal rights and obligations regarding your property settlement and family law more generally. Enlisting the support of a lawyer can help to hasten the mediation process, prevent unrealistic expectations and potentially yield better outcomes for the parties involved.

What to do and what not to do

Before engaging in mediation, it is important to be aware that your behaviour and choices carry weight in determining how successful the process is.

Things to avoid:

• Antagonising your ex-partner
• Interrupting or talking over your ex-partner
• Being closed off to negotiations.

Things to do instead:

• Be polite and respectful
• Listen to your ex-partner
• Avoid overly emotional statements
• Be willing to negotiate and consider new perspectives.

Disclosure

As in any legal setting, you are expected to give full and frank disclosure of all relevant information. If it is later found that full disclosure was not given, you could face serious penalties, such as having to pay the other party’s legal fees, dismissal of the case, or imprisonment.

Conclusion

Mediation can be an effective way to resolve property disputes if approached correctly. Consider whether mediation is right for your situation and seek legal advice if needed.