Family Law Separations - Problem Solving not a Battlefield

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.