When it comes to property settlements in Australia, Family Dispute Resolution (FDR) mediation is often the first step towards reaching an amicable agreement.
However, some individuals may choose to refuse to participate. Either in the incorrect assumption that if they refuse to engage nothing will change or they want to bypass the family dispute resolution (family law mediation) process, opting instead to take their case directly to court.
If you haven’t come to terms with the separation or don’t want to have your property divided refusing to engage with mediation might seem like a straightforward solution, it can lead to several significant problems.
Here’s why refusing to engage in FDR mediation can be a costly and risky decision.
1. Increased Financial Costs with court proceedings
One of the most immediate consequences of refusing FDR mediation is the financial burden. Court proceedings are notoriously expensive, involving various fees for legal representation, court filings, and other associated costs. In contrast, FDR mediation, especially with Interact Support is going to be much more affordable. It provides a way for you to work through the process of determining your asset pool, what you have and what you owe, and being able to negotiate and reach a fair settlement. All without the high price of a court process.
2. Loss of Control Over the Outcome in determinative processes
In FDR mediation, both participants have the opportunity to discuss your needs and preferences, working collaboratively to reach a mutually satisfactory agreement. However, if the case goes to court, the decision-making power shifts entirely to the registrar or judge. This means that the final outcome is outside your control, potentially resulting in a settlement that one or both participants is unhappy with. Having to divide up your assets following the end of a relationship is never a happy thing, but losing complete control as you will if it ends up in a court judgement is much less desirable than remaining in control over what you will agree to as is the case in mediation.
3. Time-Consuming and Inflexible Court Process
Court cases can drag on for months or even years, causing prolonged stress and uncertainty. FDR mediation is a much more efficient and quicker process because the mediator is able to speak with both of you, assist you in determining when you need legal or other advice to assist you with your decision making and run the process on a timeline that works for all involved. Court will set dates that you have to attend with no regard for other commitments you might have.
In property mediation there will be preliminary meetings with both participants to help you to prepare, we make use of technology to ensure that the process is efficient and normally there will be two sessions to allow you the opportunity to get information and advice as required. Once an agreement is reached the FDR Practitioner (family law mediator) will document what you have agreed so that you can apply for family court orders.
4. Emotional Toll may be higher
The adversarial nature of court proceedings can exacerbate tensions and conflict between you, leading to increased emotional strain. FDR Mediation offers support and a non-confrontational environment where the expectation is that everyone involved is treated with respect. Even if you have had a difficult relationship or separation, mediation can provide a safe way to resolve the issues related to your property settlement. If there has been family violence we may offer shuttle mediation where neither participant speaks directly with each other and the negotiation between you is facilitated by the mediators.
5. Potential for Adverse Cost Orders
If one party refuses to attend FDR mediation without a valid reason, the court may issue an adverse cost order against them. If you refuse all reasonable efforts to negotiate and the court determines that you have caused an unnecessary case the court has the power to order you to mediation and can even impose an order where you have to pay some or all of the other parties cost.
Conclusion
Refusing to engage in FDR mediation for property settlements in Australia can lead to numerous problems, including increased financial costs, loss of control over the outcome, prolonged legal battles, emotional strain, and potential adverse cost orders. By opting for mediation, parties can work towards a fair and amicable resolution, saving time, money, and stress in the process.
Engaging in FDR mediation is not just encouraged it is a practical step towards achieving a more satisfactory and efficient resolution to property disputes. It’s a decision that can significantly impact the lives of those involved, making it essential to consider the benefits of mediation before heading to court.