Separations are highly emotion charged times and it can be difficult
to make decisions. When emotions rule it is difficult to sort through what is
important and what is not important, as well as making long term decisions,
particularly about financial matters. It is certainly not a time when one
should rush into making major decisions. Do take your time.
However, embarking on mediation, or divorce planning, can be far
more lucrative for both parties as opposed to treating it like a battlefield,
with the court providing the venue. And planning your divorce does not mean you
rush into it.
Separation what next
Some people go and see their lawyer before they have even separated;
others straight after separation and others leave it for years. The first question
many ask is ‘What are my rights?’ or ‘What am I entitled to?’
It may be the approach by the spouse that sets the scene for a
battle as opposed to civil negotiations. Hardly anyone is able to discuss or answer
some of the following questions at their first interview with a lawyer:
1.
What do you need?
2.
What does your spouse need?
3.
How will you make the world go
around?
4.
What’s available to divide
between the two of you?
People tend to be
too focused on rights, to work out their own needs. It may be that their needs
coincide with their rights, whatever these may be.
Family Court Australia
In Australia once
people have commenced proceedings for property cases, one of the first court
dates is a conciliation conference. This is an attempt by the court to try and
get people to reach agreement. To call it a mediation would be incorrect. It is
more a process of persuasion by a court appointed Registrar. Those who have
been involved in the process would not doubt agree with this statement.
It is not unusual
though for comments like ‘the court is not about a financially fair outcome,’
or ‘just because you put a certain amount of money in, won’t mean you will get
that amount back,’ during one of these conferences and it pays to bear that in
mind when turning ones mind to mediation.
Reality is, both
parties after a separation will probably be worse off than before. At the end
of the day the pie will have to be divided between the two of you. Chances are
one of you will end up with a little more than the other.
But consider
getting to this point after having spent thousands of dollars in legal fees. Hardly
any people who have spent twenty, thirty thousand dollars to arrive at a figure
they are not exactly happy with, is ecstatic about the result, on the contrary.
It is at this point in time people realize how futile court proceedings really
are.
Alternative
Perhaps talking
about mediation is the wrong phrase. Sometimes language plays an important role
in how people accept a particular product or service.
Maybe the process
should be thought of as divorce planning.
At the end of the
day you plan your wedding, why not plan your divorce.
Instead of your
property settlement turning into a battlefield it turns into a planning
process.
Sure, it takes
co-operation from both of you, but you may find it well worth it.
It may require
some work on both sides, but in the long run, the agreement you arrive at might
be far more lucrative for you (and your ex) and you will have got there
spending not even half of what it costs to go to court.
How does it work
An independent
divorce planner (aka mediator) is hired by both of you. This person is legally
trained, often they are ex barristers, lawyers or even judges, who facilitate
the process.
It is not about
forcing their opinion onto you. It is about facilitating the meeting between
the two of you.
Why mediation
might work
Think about going
to court. What is the first thing you are going to be asked to do?
You are going to
be asked to swear an affidavit setting out the history of the relationship
(among other things).
Now you are asked
to do this at a time when the relationship between you and your ex is at its
most poisonous, which means your memory will be clouded by all this poison.
Your version of what happened during the relationship will be loaded with
negative emotions and memories. You won’t remember anything positive. In fact
as you build up steam in venting, you cannot even recall why you married the
bastard/bitch and any suggestion of you once loved each other is met with the
poison arrow look.
This material is
then served on your ex and now it is on for young and old.
If your memory was
clouded by poison, you should read your ex’s version. He/she will give as good
as they got.
This sets the
scene for a battlefield and makes world wars look tame.
Mediation on the
other hand is future focused. Whilst some time may be spent discussing the
past, generally the idea of mediation is not venting but looking forward. This
immediately takes the venom out of the break up and puts people into a very
different frame of mind.
The mediator will expect the two of you not to have much good to say about the other, but they will try and steer you away from the mud slinging as they know it is usually a very unproductive process.
Thinking about the
future and your needs takes the negativity out of the settlement discussions.
Focus is shifted from ‘he/she needs to pay for the affair,’ to ‘how much will
it cost for me to live in ideal suburb.’
Preparing for
mediation
Of course be it
mediation or court, the first thing one has to know about is what are you
arguing over? How much is in the kitty to divide up.
Do your home work.
Get copies of bank statements, super statements etc. Get red book valuations on
cars, boats, motor bikes and caravans. This is all work you can do yourself.
Get an estate
agent to do a market appraisal on property, even if it is a drive by one. Organizing
all this can be an empowering process. Once you take charge over your own
affairs you will start to feel better. Gone are the negative thoughts, there
will still be down times, with the focus by you on your future.
At the mediation
try and think outside the square. The beauty of mediation is you don’t have to
follow the traditional court orders. You and your ex can try and accommodate
what the other person needs.
Sure, there may be
give and take by both of you, but at the end of the day isn’t an outcome you
have control over far better than one imposed by a third person who knows
nothing really about you and your ex and your particular situation.
Final words
Why not try
mediation? What do you have to lose? Even if you don’t settle at the mediation,
you may find you and your ex have narrowed the issues you are still arguing
over.
If you are unsure
if mediation is for you, do the math.
Mediation is a far
more cost effective way to try and settle your property (or children) dispute
than court.
And, mediation is
usually a lot faster than court, which can take anywhere from twelve months to
two years.
