Mediation is about self-determination; that is reaching your own agreement on your own terms. However, that does not mean you reach an agreement without knowing what your legal options and outcomes are, particularly when determining how property is to be divided when a relationship ends. You need to get sufficient legal advice about how the law applies to your specific circumstances. Lawyer mediators can give you information about what the law says but they will not apply the law to your particular circumstances. In other words a mediator does not give legal advice but can give legal information.
If you are dealing with property matters you need to:
- Be completely prepared;
- Have valuations or be prepared to arrange valuations through the mediation process. Alternatively you may have already reached an agreement about values of the relevant assets;
- Be prepared to keep an open mind. Not only are “legal” outcomes possible through mediation but agreements are possible based upon the participants own interpretation of what is “fair”.
- Make decisions based upon the information you have received from your legal advisor but remember it is advice and you can determine your own outcomes; you are not obliged to follow advice but should have regard to it;
- Consider the point of view of the other party and be realistic about the outcomes that may be available. (For example, you may “want” a house to be paid for/made available to you and the children but is that really achievable given the assets that are available;
- Have a knowledge of the finances of your relationship. Have you seen relevant bank statements, superannuation statements, details of the sale of any assets after separation? You will need to ensure that you are in an “informed position”. How else will you know if the outcome you are agreeing on is “fair”?;
- Have regard to what the worse and best possible outcomes might be. It is likely that an agreement will be somewhere in between.
Remember that if there is no agreement at a mediation that your options for resolution will be limited and most likely with result in more legal expense, wasted time, more emotional turmoil, and the likelihood that a Judge will be making decisions about your future. You will have absolutely no control of the outcomes. Sounds unpleasant; it is definitely so and could be described as being “a waste of money”, loss of self-esteem, and may lead to financial ruin and possibly depression. All of these outcomes will affect your children as they too are caught up in litigation and experience the negative impacts upon their parents.
Ideal outcomes are not necessarily the product of mediation but you will have the opportunity of creating an out come that you can live with and move on.
Mediation and family dispute resolution lead to commonsense outcomes. Try it as you really have nothing to lose but potentially much to gain.