Property Family Dispute Resolution is a process designed for people who need to reach an agreement about splitting up assets when they separate.
It is unlike Parenting Family Dispute Resolution. Parenting Family Dispute Resolution is a process designed to help parents to work out the best arrangements to care for their child after they separate. Parents should participate in Parenting Family Dispute Resolution as often as they need to resolve disputes about the best way to parent as co-parents or when they need help to update their Parenting Plan. Why you need a parenting plan.
Property Family Dispute is a one off process which may be made up of a number of sessions until an agreement is reached or is found to be impossible to achieve.
What to expect in Session One
On the first session, we will be working to establish the asset pool, to discuss the considerations that you would each like the other to take into account and considering your proposals for the property settlement.
Step One: Establish the Asset Pool.
The process to determine the asset pool is to review what you have and what you owe, discuss any items where there is not yet agreement about values for the items and develop an agreed strategy to reach agreement on values.
During the pre-mediation session that you will have had before your first joint mediation session your FDR practitioner will have helped you to review your asset pool, will have explained your duty of disclosure and the risks of hiding assets and helped you to work out how to get the information you need in preparation for the FDR Session.
Sometimes we find that people have not gotten together the information they need (such as current bank statements, share portfolio valuations, values for cars, homes and super) before the mediation session. There are various reasons for this and in reality the way that something will be valued depends on what your choices are and the agreement you reach.
For example there is no need for sworn valuations if a property is to be sold and sometimes people are satisfied with a value from a valuation website for assets such as a car.
It is common for people not to agree on all the asset values at the start of the mediation and your first negotiation of the day may relate to values or how values will be established.
Step Two: Discuss Considerations.
Mediation is interests based negotiation not positional bargaining. What that means is that we seek to establish what is important to both of you as well as the strength of your relative positions as a way of reaching an agreement that is acceptable to you both rather than a compromise that you feel forced to accept.
An acceptable solution is one that best meets your needs when taking into account your options in mediation and more widely such as the potential orders you could get if you went to court.
Your FDR Practitioner will have discussed in the pre-mediation session the concept of considerations, your legal advice and strongly advised you to get legal advice in preparation for your mediation session if you have not yet spoken with a Family Lawyer.
Considerations are the things that the court would take into account in a property settlement if you applied to the court for orders but also anything that is important to either or both of you. You don’t have to agree with what your spouse raises as something that they would like you to consider but you do have to listen to them and acknowledge your understanding.
If you have children who are dependent on you they are one of the considerations that will be discussed. If you have not yet reached agreement for their care the mediator may encourage you to give that some thought before reaching a final property settlement.
Step Three: Considering Options and Proposals
Once the considerations have been discussed your FDR Practitioner will ask you to talk about your options and what you each propose.
For some families there are many options while for others there are less.
Options usually revolve around whether one or both can afford to take over and continue paying loans or can refinance to get some money together to pay the other person out.
- Generally the more money you have the easier it is to find a solution that will satisfy you both. Your discussion is about what you want rather than what you need for secure housing and transport.
- When you have less money both may end up in a situation where you don’t feel that there is enough to go around and the needs of others such as your children may play a larger part in the discussion.
Everyone will expect that the first proposal is what people would like in an ideal world and not the minimum that they would accept.
What you want and what you can get can sometimes be different and when you are negotiating your property settlement it is important to be realistic. As we mentioned above, the smaller the size of your net asset pool the more you may have to compromise. If you have plenty of assets then it is likely there will be enough to go around.
Dividing up your assets between the two of you will have an impact on your sense of security and lifestyle. That is a given but sometimes hard to accept.
Sometimes people who have not taken the time to get leading people to reject realistic proposals out of hand or not reach agreement in mediation, end up in court and find themselves much worse off after a long and painful process.
In order to avoid the need to enter into an adversarial process such as family court it is important to . Generally offers made in Mediation would not be repeated once the court process starts as the cost of being forced to go to court gets factored into what people find is an acceptable offer.
Your mediator will give you the opportunity to identify anything that you both agree on. Then they will help you look at the options for the other assets and liabilities.
Sometimes the negotiation will be about percentages (as lawyers tend to talk about your property) but other times we look at what you each need. Work out how that can be achieved and then look at the rest of the assets.
Your mediator will guide you through this process as you begin to explore your options.
Step Four: Wrap up Session One.
The mediator will end the session by discussing with you what the next step should be.
In most cases there is further information or advice that is required before you are both comfortable with committing to an agreement.
Depending on the complexity and the number of options available sometimes agreement is reached, sometimes a list of action steps is reached (such as determining values)
If a further session is required it will be scheduled in with enough time to complete any tasks that have been agreed or a process to determine when to book in for the session agreed to.
What to expect in additional sessions
Any additional sessions will provide the opportunity to update the information you have about the asset pool and continue to negotiate towards an agreement of your property settlement.