Relationship property and FDR
Written by Will Story for the Family Advocate.
How do they fit together?
As many readers will know, Family Dispute Resolution (FDR) is primarily focussed on the resolution of parenting and guardianship disputes under the Care of Children Act 2004. Thanks to the Ministry of Justice, FDR is now free for all families regardless of their income and dependencies.
While for many, family justice has become much more accessible now that the funding barrier to FDR has been completely removed, what about relationship property? After all, many parties who have been unable to reach their own agreement around care of children matters are similarly stuck when it comes to sorting out how the family home and chattels are to be divided.
While unfortunately there is no government funding for relationship property mediation, at Fair Way we recognise that there is a need to provide parties with a cost-effective and timely way to resolve their relationship property disputes. For that reason, Fair Way’s relationship property service has been designed as an add-on paid service to complement the FDR process, for families who have a positive experience of resolving issues through FDR and who therefore wish to continue with mediation to resolve relationship property matters.
Sometimes, the two are closely linked and outstanding relationship property matters are the barrier to parties fully and freely reaching a robust agreement around the children. For example, it might not be possible for parties to commit to a proposed childcare regime without having certainty of financial positions. For many cases, there are strong merits in parties having a separate relationship property mediation run simultaneously or sometimes even before FDR.
So why should your clients use mediation to resolve relationship property issues?
Mediation can help parties get to the negotiating point much quicker. The conventional process of lawyer letter-writing backwards and forwards can drag on for months, if not years, before the parties are encouraged to sit around a table for a facilitated discussion. This of course traditionally comes at great expense to both parties (often eating into what is a modest property pool) and exacerbates tensions around co-parenting matters. As a previous practicing relationship property lawyer, I found myself questioning the value of drawn-out disclosure processes where all that was often required was getting the parties and their lawyers together in a room so that months’ worth of exchange could be fast-forwarded and a clear plan agreed to. The beauty of having this conversation facilitated by a mediator is that not only do they bring relationship property knowledge and expertise, they bring a level of objectivity and creative thinking that can be difficult for Counsel as advocates to reconstruct.
We recently had a case involving a couple who had been attempting to work through financial matters via their lawyers for nearly two years. Communication had become difficult and progress was limited. Through mediation, we were able to resolve the outstanding issues within four hours. The feedback from both parties was extremely positive, particularly about how straightforward and manageable the process felt compared to their previous experience.
It’s also worth noting that our relationship property mediators come from not only a legal background but also are highly trained and experienced in conflict management. That combination can sometimes make it easier to work directly with parties, helping them communicate more effectively and reach practical agreements without the need for prolonged legal processes or court involvement.
What if they cannot afford it?
At Fair Way we recognise that one-size-does-not-fit-all. Our process is therefore tailored to the needs of each family in their particular circumstances, recognising the overall depth of the relationship property pool. Overall, the cost of a relationship property mediation through Fair Way is quite affordable in contrast to many private relationship property mediators.
As a mediation supplier, we offer payment options to parties (recognising that many parties are cash poor but asset rich). It is important also that parties talk to their lawyers about what other funding options may be available (for example, legal aid). The growing presence of litigation funders (who don’t just fund litigation) in New Zealand is also an option that is becoming more readily accessible and well worth exploring.
Are people using mediation to resolve relationship property much?
As the nationwide supplier of funded FDR, we have seen a significant increase in the number of parties inquiring as to the viability of mediation to resolve relationship property. This is a good reflection of both the increasing awareness of ADR as an effective tool, and of the practical and sound legal advice being provided by legal representatives.
It is important to highlight too that the number of relationship property lawyers now ascribing to collaborative practice has coincided with the growth of ADR as a means of resolving relationship property matters in New Zealand. The future is positive!
How are lawyers involved?
There are obviously legal requirements that need to be met when parties enter into relationship property settlement agreements.
In the past, many lawyers have seen it as critical that they sit at the mediation table with their clients to ensure they are sufficiently represented during the facilitated negotiation process. Now more than ever, perhaps as legal advice becomes more quickly accessible through phone or video conference, it is equally common for parties to be empowered by their lawyers to enter into free and full discussions without their lawyer being their mouthpiece, but rather with their lawyers being consulted in breakaway sessions or involved in pulling together the finer detail of the agreement prior to being signed by both parties.
Either way, legal advice is a critical component of robust agreements, and we work with parties to ensure that the process reflects their needs – wherever they may prefer for their lawyer to be involved.
Case study
A separated couple struggling to communicate and resolve their relationship property issues sought help from Fair Way. Their concerns about supporting their children made it difficult to make progress on their own.
We guided them into the relationship property mediation process, helping them complete full financial disclosure, including identifying, classifying, and valuing all assets and debts. Based on this information, Fair Way provided a realistic cost estimate. Families with lower-value property could use a simpler facilitation process, while those with complex assets are given cost expectations for a full mediation. These parents were eligible for legal aid, so based on their needs we provided a fixed-price in order for them to obtain a legal aid disbursement for these costs.
The parties then obtained independent legal advice and participated in coaching to prepare for mediation. The appointed mediator had significant expertise in Property (Relationships) Act 1976 matters. The mediator met each party separately to understand their goals and concerns, then facilitated a joint session focused on practical solutions to support financial stability for their children. This led to an agreement that allowed both parents to maintain homes in the same community and strengthened communication around their children’s needs while considering the financial resources available to the parents.
The mediator drafted an agreement which the parties finalised with their lawyers and certified under section 21 of the Act. With clarity about their financial positions, they then returned to FDR to complete their parenting agreement. By having both FDR and relationship property mediation run in parallel, the parents reached a fair, practical resolution on both fronts that supported both them and their children.
About the author
Will Story BA LLB ([email protected]) is an experienced family lawyer (not practising) and Head of Family Services at Fair Way.
