Why people think they don’t need a valid will and why they are wrong
Having a valid Will is essential to your estate planning, without it you die intestate which is exactly what you want to try to avoid to do. What’s the importance of ‘valid’ here, sometimes you think you have a Valid Will, i.e something legally enforceable when in fact it’s not valid at all, the consequence of this is dieing intestate. If this is the case, it can be extremely trying on family members knowing that what you may have actually wanted to happen to your estate isn’t going to happen because your Will wasn’t valid.
Here are the most common reasons people give for avoiding getting the will done properly
I can draft a will myself
Yes and no. If you don’t do it properly and what you actually wanted to happen doesn’t happen to your estate, your family members could be devastated. Not to mention if you make a mistake, even a minor one can cause unwanted costs after you die. Most will kits and DIY online wills make it very easy to make a mistake.
I made a will years ago so it’s fine
Yes and no. If you get married, divorced, separate, have children, lose family members etc than you should seek to see if your will is still valid.
I don’t have any assets
If this is the case it’s even more of a reason to ensure you have a Valid Will in place. You don’t want what little assets you have being chewed up in unnecessary legal costs. Even a car being sold and passed on could save your family substantial costs if done in accordance with a Valid Will. Additionally, consider superannuation funds and life insurance policies that are often attached to your superannuation as these can turn out to be worth quiet a bit of money which may be passed to your estate when you pass away.
Everything goes to my wife/husband/spouse/children anyway
This is not always the case. If you die without making a valid will, you will be found to be “intestate,” meaning you’re your estate will pass through according to the intestacy laws. Depending upon your personal circumstances at the time of your passing, your estate could go to your spouse or partner, children, grandchildren, parents, siblings, nieces and nephews, uncles and aunts, cousins that you’ve never even met.
What is your duty of disclosure in family law?What does duty of disclosure mean?
All parties involved in a family law dispute are required to provide to each party and the Court all information which is relevant to an issue in the case. This information could be in the form of a paper document or stored by some other means such as USB’s, CDs and other computer storage device.
When does the duty start and end?
Duty to disclose starts with pre-action procedure, that is, before the case starts and continues until you settle your matter.
In some cases where circumstances change or where more documents found, people often assume that they are not required to provide such documents. However, this is incorrect, and you must continue to provide these to all the parties involved in the case.
Full and Frank disclosure (financial cases)
If your case involves financial issues, then in addition to general disclosure requirements, you are required to provide full and frank disclosure. This disclosure must include each party’s total direct and indirect financial circumstances such as:
All sources of earnings (including any Centrelink payments, child support, trusts, companies, business)
In some cases, parties often dispose of their property such as by sale, transfer, assignment or by way of gift. Under the DOD, parties are required to disclose all the information relating to such disposal if:
The disposal was made in the year immediately before the separation of the parties or;
The disposal was made since the final separation that may affect or defeat a claim
If your case relates to parenting matters, then you are under an obligation to provide to each party involved in the case all documents that may be relevant. These include but not limited to:
Medical reports of your child/children
Letters/drawings made by your child/children
Any photographs, notes, journals
Compliance with your duty of disclosure
Family Law Rules lists many ways by which you may be required to comply with your duty of disclosure. These include:
Production of documents
Inspection of documents
Copying of documents
List of documents
Answer to specific questions
Please note this is not an exhaustive list. We have only listed here a few to provide you with a general overview.
All parties are required to file an undertaking acknowledging your understanding of Family Law Rules relating to DOD.
The undertaking also states that you are aware of your duty to the Court and each party to provide full and frank disclosure of all information which is relevant to the issue in the case. You must disclose promptly.
Upon signing the undertaking, you also acknowledge that:
to the best of your knowledge and ability you have complied with the duty of disclosure and;
any breach of the undertaking may be contempt of court.
Failure to disclose – Penalties
If you do not comply with your duty to disclose, then the following may occur:
The Court may not permit to use that information or document as evidence in your case;
It may also dismiss all or part of your case;
The court may order costs against you and;
You may get a fine or at worst become imprisoned if you are found guilty of contempt of court for failing to disclose the documents or breaching your undertaking.
Disputes after relationships end are uncomfortable but are a regular part of the separation process. If you have previously done some research on Alternative Dispute Resolution, you may have noticed that there are a lot of different types of Alternative Dispute Resolution.
What is Alternative Dispute Resolution?
Alternative Dispute Resolution is a process where an independent person such as a mediator, helps people in dispute to resolve issues between them.
If you are struggling to agree with your former partner, whether it be a family law issue, property split issue or child custody, Alternative Dispute Resolution might be a useful tool for you.
Methods of Alternative Dispute Resolution
Methods of alternative dispute resolution include:
You may have already used this process in your day to day lives. This process can be useful if you and your partner listen to and hear each other out, work out what issues are in dispute and what is essential to each person, and aim to reach a workable agreement. Your lawyer can help negotiate on your behalf and attempt to reach a deal with the other party.
In mediation, the parties try to resolve the issue with the assistance of an independent person such as a mediator. Each party listens to the other party’s points of view and contribute to the discussion. If you do not feel secure when communicating with your partner, then mediation may be unsuitable for you. Sometimes, parties can sit in separate rooms which alleviate these issues.
This process can be similar to mediation. What makes conciliation different is the conciliator’s role which may be more directive and advisory. It may be suitable when parties have tried negotiation but did not reach an agreement. A conciliator might actively guide the parties to a resolution, reality test the parties positions to help them reach an agreement.
It is a type of Alternative Dispute Resolution where the parties present arguments and evidence to an independent third party. If the mediation and conciliation process has not helped you reach an agreement, then arbitration can be particularly useful. As opposed to mediation and conciliation, in arbitration, there is a much higher need to produce evidence or facts. You will also need to agree before the process that the arbitrator’s decision will be binding and enforceable.
Advantages of alternative dispute resolution
The advantages of alternative dispute resolution include:
Going to court can be very expensive. Choosing an Alternative Dispute Resolution process to help sort out issues between the parties, will save you on lawyer costs and fees.
Not only will you save on legal costs but you will also have less strain on your time by avoiding court proceedings. Going to court hearings and trials can be a lengthy process and time-consuming. The use of Alternative Dispute Resolution is much quicker.
Flexibility and Control:
You may have seen that at a court hearing, parties do not have much control over the dispute and the way it is handled. Good news! With Alternative Dispute Resolution, you have more control over the dispute and choose what issues to raise.
Alternative Dispute Resolution helps you to achieve results that work for all the parties involved in the dispute.
Is Alternative Dispute Resolution best for you?
Whether or not Alternative Dispute Resolution is best for you is dependent upon the nature and complexity of each case as well as other factors, such as a party’s willingness to corporate. Although generally, Alternative Dispute Resolution has been effective in resolving many disputes, it may not always be appropriate.
Say for example your former partner is trying to sell of the matrimonial property without your knowledge. In such matter of immediacy, Alternative Dispute Resolution may not be suitable as you would want to prevent the other party from selling off the property that you may have a legal or equitable interest.
At Cudmore Legal, we understand that it can be frustrating and difficult when your former partner is not willing to compromise. You do not have to go through it all on your own. We are always here to point you in the right direction.
The cost of a Last Will and Testament can vary depending on how you wish to make your will:
Last Will and Testament kit
Simple Last Will and Testament with a solicitor or lawyer
From $500 – $800
Wider estate plan (complex wills, trusts, enduring power of attorney, advanced health directives)
From $1000 depending on your needs
What is the total cost of Making Last Will and Testament?
The exact cost of a will may be influenced by:
Whether or not you have a blended family;
If you’ve remarried, separated or divorced;
If you want to make specific gifts in a certain way;
If you want to leave someone out of your will who would normally be included in your inheritance;
Company or family trusts;
Gifts or loans you’ve given before you die; or
Leaving something to someone that would usually go to the other owner upon your death, for, eg if you own property as ‘joint tenants’.
How much does a Last Will and Testament cost in Australia?
The laws that govern wills and estates are complex and different in each state of Australia. This means that it may be more expensive or less expensive depending on where you live. The total cost of a will can be influenced by many other factors discussed above and depends on whether you do it yourself with a will kit or use a solicitor. The issue with using a will kit in Australia is that most basic will kits, give poor instructions and it’s effortless to make a mistake which can end up costing several thousand or several hundreds of thousands to fix after you die.
What is the cost of making a Last Will and Testament with a solicitor or lawyer in Australia?
Lawyers or solicitors charge between $300 to $500 per hour for wills, and it depends on the complexity of your estate as to how much the total cost is with a solicitor. When you make a will with a solicitor, you aren’t necessarily paying for the time to draft the will but for their experience and understanding of the law and how it affects your circumstances. Depending on the cost of your will, a solicitor may ask you to pay into their trust account to cover their fees.
What is the cost of preparing a Last Will and Testament?
The cost of a will can be reduced if you invest your time into understanding your situation. You could do the following:
Put together a list of assets and liabilities;
Decide on who you want to give your assets too;
Learn about the different ways you can gift your assets;
Choose who you want to be in charge of your estate after you die (executor)
Additionally if using a lawyer, you may want to provide all this information to them before meeting them to save time at the meeting.
What is the cost for a lawyer to prepare a Last Will and Testament?
Some people may need assistance when it comes to preparing to make a will. A lawyer can help prepare for your will making by getting together your assets and liabilities or giving you advice on how to structure your estate.
Lawyers charge differently from each other, and some lawyers provide fixed fees and others charge hourly. Almost all wills are prepared on a fixed fee basis. However, if you have many complicated structures or investments, a lawyer may prefer to charge an hourly rate.
When using a lawyer, you should ask for your cost to prepare your Last Will and Testament upfront either a fixed fee or hourly and ask them to explain to you what the cost covers.
What is the going rate for lawyers or solicitors fees for a Last Will and Testament?
Lawyers or solicitor’s fees for wills can be anywhere from several hundred to thousands of dollars. Two lawyers can give very different estimates of their fees depending on their experience and skill. In this case most of the time you will get what you pay for. Understanding how your lawyer charges and what you are paying for is fundamental. Sometimes there are additional costs, such as title searches which may not be made clear to you.
What is the cost of making a Last Will and Testament with Cudmore Legal?
How to gather evidence for your property settlement
Virtually all property you’ve accumulated during your marriage should be included for division between the parties. We can help you gather everything you need.
To make sure you get what you are entitled to the first step is to know what’s really in the property pool. To do this you need to gather any documents related to your assets or liabilities. These include:
• Title Deeds
• Tax returns
• Mortgages/ Loans
• Personal Loans
• Bank Statements
• Superannuation statements
• Proof of valuable property (jewellery, cars etc)
• A detailed list of personal property
If your spouse owns a business, it’s imperative that you obtain as much information as possible about the company including, business tax returns and financial statements, documents evidencing business assets and liabilities (such as real estate and personal property, including bank accounts, as well as records of outstanding loans and other business debt), and organizational paperwork, like certificates of incorporation.
Gathering this information can be a daunting task and a lawyer can make this job easier. Alternatively you can get the ball rolling yourself, below are some useful resources to help getting the information you need.
These are usually prepared by your accountant. A quick telephone call and they may be able to email you the previous three years without any hassle. These are important as they show a parties regular income over the past few years. These can be more complicated if a party is running a business as they can artificially inflate/deflate their income.
A title search contains information relating to the ownership of the land, how it is owned, if there is any mortgages or interests over the land. A family lawyer can obtain title searches for you, however you can also obtain title searches yourself online from most state governments. If you are in Queensland simply follow this link.
You should receive regular superannuation statements. However sometimes these can get lost. You can either contact the super fund directly to provide you with a statement. If you aren’t sure how many super funds you have, you can get a copy of your superannuation from the ATO online.
If you don’t receive copies of your bank statements you can contact your bank. Most banks allow you to download bank statements if you have internet banking. You don’t need to get all bank statements you’ve received in your entire marriage, however the last 12 months is a useful starting point.
Proof of valuable property
Usually spouses can agree on the value of something, it’s only when there is disagreement that you might need to seek valuations. However, if you or your spouse has property that is valuable, for example wedding bands, cars, collectables that have previously been valued. You should obtain copies of the valuations.
Split? Get the best outcome in a property settlement
Firstly, the best outcome is often achieved by a negotiated settlement, not going to court. We have compiled a simple list of a few tips to help you achieve a fair property settlement.
1. What’s in the property pool?
Make sure you think of everything that could be included in the property pool. Sometimes, hiring experts on a joint basis helps to value assets in the property pool so your family lawyer can better negotiate your entitlements. Liabilities should be thought of too, so getting an accountant on board can help you work out tax implications.
TIP: You won’t get a successful negotiation without knowing what needs to be divided. Think about superannuation, credit cards, shares and even possible inheritances.
2. Give them something they can’t get elsewhere
A lawyer can help find things the other party wants – and won’t possibly get in court. This could be timing sales of property, structuring super splits in certain ways or transferring assets from companies and trusts. Putting these things on the table can help you line your own pockets from money that might have otherwise gone elsewhere.
TIP: Be reasonable, don’t use children or other intangible things to manipulate your former spouse into giving you what you want. This only causes long-term and potentially life long problems.
3. Disclose quickly and don’t hold back
Muddying your figures or delaying disclosure is likely to make your ex’s lawyer think you are trying to hide something even if you are not. To reach a negotiated settlement, make sure you are open with your family lawyer and ex and provide copies of all relevant documents and information.
TIP: Trying to delay or confuse your ex will probably lead to them asking for more information and potentially push the matter to court.
4. Time your negotiations to your best advantage
Timing is everything. If your ex-holds grudges, they might not budge in a negotiation. Additionally, if you’ve committed an act of infidelity or possibly made the choice to end the relationship you might be more inclined to give more than what you probably should. In these cases, try to negotiate when emotions have failed is nearly impossible. However, if your ex is the one that strayed or ended the relationship – you might be able to capitalise on their guilt by starting negotiations early.
TIP: Early negotiation and resolution are usually best in most cases to save legal costs however if the other party is still over emotional it might be best to delay.
5. Finding the middle ground
You can’t have it all, the fact is settlements only happen when both sides give up something. Before making any decisions try to do a cost/benefit analysis. Your lawyer should be able to advise you about alternative outcomes if you fail to reach a deal. At the end of the day, you should approach the property settlement as you would any other commercial transaction. Use the advice from professionals and make a commercial decision.
TIP: Use commercial sense here. The TV, fridge, couches etc, usually aren’t worth fighting over. You might win the battle but you will lose the war.
4 steps you should take if you’re subject to a potential protection order
Protection Orders are serious matters
A protection or domestic violence order can restrict contact with the aggrieved spouse as well as contact with children.
If you are subject to an order, you must understand that it is a very serious matter that deserves your prompt attention. There are potential consequences to a DVO even if you don’t break the order, from contact with children or even the ability for you to hold a weapons licence.
Temporary protection order vs protection order
A temporary protection order is like a protection order but it’s for a shorter time to protect those in danger up until the date that a magistrate can decide the application for the full protection order. A hearing for a final order will follow afterwards, but it is usually a long wait. It’s essential to follow and obey the temporary order and obtain legal advice as soon as possible
A protection order is a domestic violence order made by a magistrate in court to protect people in domestic and family violence situations. Most protection orders last for two years however the order can be made for longer or extended if the court feels it’s appropriate.
Why is it important to consult with a lawyer?
Every DVO has a standard condition that the respondent must be of good behaviour and not commit domestic violence against the aggrieved or any other person named in the order, including children, relatives or friends. When a court makes a DVO, it can set out specific conditions that must be followed and obeyed by the person who has committed the violence. These rules can impact on your life and it’s important that you are fully aware of the consequences of these rules before the court makes the order.
Consequences of a DVO
The order might stop you:
• contacting or visiting your children;
• approaching the aggrieved at work (what if you work near them or regularly attend their workplace for alternative reasons?);
• staying in a home you currently share, even if the house is owned or rented in your name
• approaching relatives or friends (if named in the order);
• going to a child’s school or day care centre; and
• any extra conditions deemed necessary or desirable,
It is possible to negotiate the conditions, that’s why you should consult with a lawyer as soon as possible.
What to do if you’re subject to a potential protection order
You’ll want to take specific steps to deal with the prospect of having a protection order issued against you. Here are some suggestions.
Firstly follow and obey the Temporary Protection Order, even if you feel that you have a valid defence and will defeat an attempt to turn the temporary order into a permanent order.
Gather any physical evidence relating to any incidents or events the aggrieved application refers to, such as clothing, photos, videos, and objects.
Assemble any documents or records that could relate to the case, such as letters, emails, phone and GPS records, computer records, and records that might show where you were at the time of an incident; and
Make a list of possible witnesses—include every person you think has information about the incident, the accusations or the petitioner—and obtain the witnesses’ contact information.
Even if you plan on consenting to the order, these items could prove useful in negotiating the terms of the order. For e.g. – If you are accused of calling or texting repeatedly, your phone records might show otherwise.
What not to do when faced with a protection order
• It’s a criminal offence to contravene any of the conditions of a temporary protection order or protection order.
• Do not destroy evidence that you think could hurt you, as this may cast you in a suspicious light with and can lead to criminal charges
• Try to talk to the aggrieved or witnesses you expect will testify for them, (including text messages or email), or
• contravene or disregard a temporary restraining order in any way making it even harder for you to defend against the request for a permanent order.
• You should never ignore a restraining order request. Instead, you should get information about your rights and options, consult with a lawyer, and participate in the court process.
When should you consult with a lawyer?
Temporary orders can happen very quickly (and sometimes without you even knowing) and are usually followed soon by a permanent order. Your ability to defend against a temporary or permanent order or even negotiating the conditions will depend on having a thorough understanding of the law.
Having an experienced family lawyer on your side — someone familiar with the law, the rules of evidence, and the sensitivities of the judge — will greatly increase your chances of a favourable outcome.
5 tips to reduce the emotional and legal costs of divorce and separation
Going through a divorce is likely going to be the most difficult time of your life. Divorce doesn’t need to be the most expensive or emotionally draining thing you do if you approach it right. You don’t want your divorce costing more than your wedding, and while the loss of a relationship is akin to the death of a loved one, there are tactics that can help lessen the blow both emotionally and financially.
1. Watch out for the domino effect
In a divorce or separation, it can be easy to dwell on what you could have done better, or what the other party might have done to cause all of this. Experience has taught us, that placing blame on one party or yourself, leads to emotional cloudiness which will affect your decision-making ability. It’s best to try and look forward. Approach the divorce as a new step in your life. There is going to be a grieving process and you need to accept it. We recommend most of our clients see a counsellor. Most people can qualify for free counselling either through their GP. If you approach the divorce with a clear mind, you will make better decisions. These decisions can set off a domino effect. For example, responding to that text message in a calm manner vs responding to it with a nasty threat or abuse, could mean the difference of thousands of dollars in legal fees in fighting a protection order.
However, it’s not always appropriate to move on and completely forget the past behaviour of your spouse, particularly in child custody cases where past abusive behaviour towards you or the children must be considered.
2. Don’t let your new spouse or their new spouse affect you legally or emotionally
We all know that too many chefs in the kitchen can reap havoc on the meal, same goes for divorce. While you should rely on your new spouse, friends or family for support – don’t let them make your decisions. It is true, that least amount of people involved in the decision making of a divorce will often lead to a speedier and less costly divorce. You might find your ex’s new spouse totally abhorrent, but unless the new spouse has a criminal history or is abusive then it’s probably best to leave their nuances and try to get along. Most people are reasonable once you find the motivations for their actions.
Additionally, you should make sure that your new spouse is a suitable fit for you and your situation. We’ve dealt with cases where it’s been revealed that a new spouse has previous child sex crimes this caused a tirade of child custody issues. It’s best to have open and honest communications with all parties early on.
3. Forgot about the past and the present behaviour too
While it’s often said you should just try to ‘move on’ from past behaviour, the same can be said about the present. Your ex might sleep with a close friend, take up a new hobby, or decide to get fully body tattoos of pirates. Regardless of what they do, it’s best not to focus on it too much. It’s easier said than done, but it can cost you a lot of emotional time and legal fees if you let it.
However if the behaviour is out of line, abusive, puts you or the children at risk, or involves financial aspects you need to talk to your lawyer asap. Setting boundaries early on are the key in these situations.
4. Lock down your social media immediately
It might be fun to post an image of you 20kg lighter with a new beautiful lover by our side, heck it might be fun posting a passive aggressive meme style slap in the face. We aren’t saying don’t post it, but it shouldn’t be posted to add fuel to the fire. If you haven’t already you should remove your spouse from viewing your social media. Additionally, you should consider setting audiences on Facebook so that only your most trusted allies can see how good you are looking now. While legally there are no consequences for posting these types of things, the truth is an emotional blow up on their end can end up in a blow out of your legal fees.
It goes without saying posting about the relationship or the new parties behaviour or lack of is also off limits. You might slip up in an angry rage and say something you shouldn’t. Being slapped with a potential defamation case is the last thing you want now.
5. Get legal advice early
Obviously, as lawyers, we are always going to tell you to do this. But really, really do it. Getting advice early on, setting boundaries early on is far better than letting issues muster away. You need to take actions as soon as possible even if you aren’t emotionally ready to accept the relationship is over. Some people put off getting a lawyer until the other party does, but even in the most amicable cases, it’s best to see a lawyer early as it might just get nasty down the line. We often have cases where everything is fine until one party moves on or gets into a new relationship. We have had cases where everything is fine until something isn’t clear in a nonofficial agreement that agitates the parties. You will save yourself loads of stress talking to a lawyer sooner rather than later.
Mediation is arguably one of the most useful tools in the family law process. The main reason why mediation works is that the agreement reached in mediation is mutually beneficial. In the majority of cases, parties will reach an agreement and even if they do not, mediation helps parties safely evaluate their options and explore settlement before going to court.
What is mediation?
Mediation is where an independent third party, called a mediator, helps the parties reach a deal.
What is the role of an independent mediator?
The mediator assists the parties to communicate with each other and make decisions relevant to resolving their dispute. The session usually begins with a joint meeting of the parties. Usually, parties to the mediation then break off into separate rooms and the mediator will go between. This process is used to diffuse tension between the parties.
Is mediation compulsory?
In most matters dealing with child custody, parents are required to attend Family Dispute Resolution before they can progress their matter through the Family Law Court System. Note certain situations exists where the parties may be exempt from Family Dispute Resolution, this includes cases involving family violence, child abuse or extremely urgent matters. A divorce is rough, but add children to the mix, and it becomes a completely different league. Once the parties attend a Family Dispute Resolution session, they will be issued with a section 60I certificate, which they need before going to Court.
Why mediation works?
Mediation is private and confidential
Mediation allows for parties to resolve disputes without lengthy family court process. They can resolve disputes in a private setting, often at the mediators’ office or at a neutral location for both parties.
Mediation can help with underlying pain
Family law is an emotional time, family lawyers do their best at separating emotions from legal issues but it doesn’t mean that the emotions will go away. Mediation allows for surface tensions to be aired and can help parties who might otherwise hold onto the pain of divorce or separation for years.
Mediation is mutually beneficial
The goal in a mediation is to find a solution for the parties that is mutually beneficial. A court dictated outcome may not be favourable to both parties. If both parties are happy with an outcome, it makes the outcome psychologically easier to accept and more likely to be followed by both parties. This dramatically decreases the risk of further issues arising later on. Mediation allows parties to control the outcome and find a win/win deal.
Mediation is less heated
When parties can have some control over the outcome, rather than be dictated to by a judge, they generally remain more respectful. In court, parties will need to hear family lawyers say negative things about them. This can be avoided in mediation.
Is mediation better for the children?
Unresolved conflict is not good for anyone, while the court process will give you a resolution it doesn’t mean the issues at hand a truly resolved. These underlying conflicts and issues are apparent to children and can cause damage. For this and more, mediation is often the best way to go. They can be kept out of the room, and will never have to see or hear what happens.
Mediation resolutions are highly tailored
A court dictated outcome might not be as customised and specific to your family as a meditation could be. Every family situation is unique and a mediation allows the parents to create a solution that is best for them rather than traditional court-appointed outcomes.
Mediation is less costly
Family lawyer fees, court fees, barrister fees, report fees and the like can add up. A mediation is no doubt the most cost-effective option. You might be wondering, what if it fails? Wouldn’t of the court process been better? Not necessarily, as mediation can allow the parties to see each others case and save time which results in lower legal fees in the end.
Most importantly why mediation works
In our experience, most family law disputes can be resolved in mediation. If mediation does not work, there are other alternatives before going to Family Law Court including seeking arbitration.
The benefits of mediation are rich and why mediation works is discussed in our blog at length. But when mediation fails – what’s next? The first thing to note is that mediation doesn’t often fail. The informal process usually allows for all parties to reach a mutually beneficial settlement without incurring excessive legal costs.
There are other options before going to court
If a mediation fails, it can be extremely frustrating if one party is ready to settle or both parties were prepared to negotiate. In the rare case that mediation fails, there are still alternatives before you go to Court. These ought to be explored.
Take note of the positives
Even a failed mediation is a great learning process thus it’s important to step back, take a deep breath, and remember that not everything is lost. You know the other parties’ arguments, how they feel and what they want. This can make it all the easier to resolve the conflict. Sometimes minor issues are resolved in the mediation, which means it’s not all bad. It is very unusual for a couple to enter a mediation and not reach agreement on a single thing.
Put simply don’t give up on the process yet, so when mediation fails – what’s next?
Often the best thing to do is work out with your family lawyer why the mediation failed and how to fix it.
Are emotional issues to blame?
Mediation can sometimes bring out emotions that aren’t pleasant to experience. If the parties are clearly in emotional turmoil, and that is what is affecting the mediation process, it might be best to look at counselling. Counselling does not need to be done together, you can go on your own. The fact you are going to counselling might be enough to prompt the other party into doing the same. Once the emotional issues are dealt with, you can attempt to negotiate again, with or without a mediator. You’ll be surprised what can be achieved with a clear head.
Lack of disclosure
If the mediation failed for lack of disclosure of financial documents, it’s best that both parties seek disclosure from each other and perhaps attempt to settle the matter again. If the other party doesn’t comply then you may discuss with your family lawyer whether you should go to court to seek orders for disclosure.
Were the parties too far apart
If the parties are too far apart, it might be best to reassess your position. There is usually a reason why parties are in such disagreement. Even if neither party wants to change position you still don’t need to go to court. You might discuss with your family lawyer whether you should consider arbitration. Arbitration is a much cheaper option than court. In an arbitration, a third party (such as an experienced barrister) will make a decision and the parties will be bound by it.
Was there intractable conflict
If the parties are in a high conflict that cannot be resolved, again it might be best to reassess positions. An experienced family lawyer will be honest with you and will be able to give you an objective opinion about how reasonable you are being. If the other party is the one being unreasonable, you may not be able to get them to agree to arbitration or another mediation, if that is the case, the next step might be to (unfortunately) file proceedings.
In summary, the next step after a failed mediation does not have to be expensive litigation. Your family lawyer should advise you on options to try and resolve the issue. Alternatively look at other forms of dispute resolutions such as arbitration where the parties might benefit from another party making decisions and is less expensive alternative to a long and messy divorce.
If you have any other questions please contact us.