Property 101: Mediation in Perth matrimonial property settlement cases

GUEST OBSERVER

The time taken from the commencement of proceedings in the Family Court of Western Australia was 108 weeks for the 12 months ending August 2013, 92 weeks for the 12 months ending August 2014 and 89 weeks for the 12 months ending August 2015.

Rather than wait almost two years for your case to be heard and determined by a judicial officer of the Family Court, you can take control of the outcome of your case by participating in a mediation-style conference.

Mediation does not require the preparation of expensive court documents and your attendance at court. Mediation may potentially achieve a prompt outcome.

Participating in mediation before commencing proceedings in the Family Court is not mandatory.

However, in 2012 the Family Court of Western Australia issued a directive to family law practitioners which confirmed that at the first Court hearing for property settlement matters where all parties are legally represented, practitioners would be expected to:

have considered arranging private mediation style conferencing;

provide to the presiding judicial officer the timeframe for the conferencing to allow an appropriate adjournment date to be given; and

if such conferencing is not considered appropriate, advise the presiding judicial officer of the relevant reasons.[1]

Who will be the mediator? 

Mediation can be conducted by:

• a Government funded organisation; or
• a private mediator (a person trained and qualified to conduct mediation).

Many family lawyers are also trained and qualified mediators. If a family lawyer is appointed as your mediator, you can expect that they will have a sound understanding of the issues in your case.

The practice in Western Australia amongst family lawyers is that one party nominates a pool of mediators that they propose be appointed. The other party then selects from the pool or in some cases, proposes alternative mediators. The parties ordinarily agree the identity of the mediator. In some cases, however, the Family Court determines who will conduct mediation if the parties cannot agree.

Who attends mediation? 

The parties, their family lawyers and the mediator attend mediation.

It is possible to have a support person present at the location where the mediation occurs, but that person does not directly participate in the process.

Do I have to be in the same room as my ex?

Ordinarily mediation occurs with the parties, their family lawyers and the mediator in one conference room.

Throughout the course of the mediation there are numerous scheduled breaks where parties ‘break out’ into separate rooms to consult their family lawyer privately to obtain advice, discuss options and settlement proposals.

Mediation can be conducted on a ‘shuttle’ basis, which means that the parties are in separate rooms and the mediator moves between the rooms during the mediation. A ‘shuttle’ mediation is usually reserved for exceptional cases.

If you are concerned about your safety or being in the same room as your ex, you should ask your family lawyer about your options, but a ‘shuttle’ mediation may be appropriate.

How long will mediation take? 

Mediation is generally scheduled for a half-day or full-day session.

The process of agreeing a mediator, scheduling a convenient date to all parties, preparation and participating in mediation may take several weeks, or in some cases months.

Both parties and their respective lawyers meet with the mediator individually for what is known as an ‘intake session’. This allows the mediator to meet the parties, to obtain an overview of the issues in dispute, assess any risk factors and explain the mediation process.

It is possible for more than one mediation session to occur if there are matters that need to be discussed further or reviewed.

How much does mediation cost?

The cost of engaging a mediator varies according to:

• whether mediation is to take place for a half-day or full-day; and
• who is engaged.

You could expect the costs of engaging a mediator for a full-day conference to be between $2,000 – $5,000 (plus GST).

Some mediators offer mediation services for reduced fees in cases involving a modest pool of assets (below $750,000).

Who pays for mediation?

In most cases the costs of engaging a mediator are shared equally between the parties.

There is no regulation which stipulates that the costs are to be shared.

In some instances a financially superior party will meet the costs of engaging a mediator. Sometimes a financially inferior party contributes their share of the mediator’s costs out of their property settlement.

What will mediation achieve?

If an agreement is reached your family lawyer will assist you to evidence an agreement, for example by preparing a minute of consent orders that the parties can sign. The consent orders will then be lodged at the Family Court to make the agreement reached binding.

If the parties are unable to reach an overall agreement to resolve all matters in dispute, mediation can achieve agreement in relation to:

• obtaining valuations;
• partial property settlement; or
• how the matter will progress to a trial in the Family Court.

Benefits of mediation:

Some of the benefits of mediation include:

• it is confidential;
• it is a fast and effective first step to resolving a dispute;
• if an agreement is reached it saves the time, money and potential stress of Family Court proceedings;
• it is a more structured and dynamic form of dispute resolution than ordinary negotiation;
• it increases the control the parties have over the decision – if a dispute goes to Court, the decision will be left to the judicial officer;
• compliance with agreements reached through mediation are usually high due to the fact that the decision was mutually agreed; and
• the option of commencing proceedings in the Family Court will not be compromised if mediation is unsuccessful.

For further information contact Carr & Co here.