Case study: Relationship property mediation and FDR
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. Often, this is a natural next step for parents who have experienced FDR. A recent case was an example of this. The parties had first come to Fair Way for FDR mediation. The outcome of this was that while they were able to reach an interim parenting agreement, they recognised that they needed to resolve their relationship property before being able to reach a final parenting agreement. For these parents, it was essential for them to do so in order to ascertain their future financial positions before being able to make long term plans regarding the care of their children.
This is often the case for parents as their respective post separation financial resources need to be taken into account when deciding on care arrangements for their children. For many parents who come to FDR, deciding how they will use the resources they have available to them is necessary in order to make a parenting agreement. These resources are usually about time and money, and separated parents need to discuss the needs and aspirations they have for their children and how they will facilitate these. Having a clear understanding of exactly what their respective financial situations will look like and what commitments they can make is therefore needed. Factors can include whether one or both parents will need to move to a new area or city, whether their respective work commitments will change and what activities they are able to support financially.
The parties in this case were unable to communicate effectively and therefore unable to resolve their relationship property themselves. Their underlying fears around how they would care for their children made it difficult for them to see a way forward. The parties decided that they needed assistance and approached Fair Way.
The Fair Way Resolution Coordinator discussed options with the parties and engaged them in the relationship property mediation process. As full financial disclosure is essential, she worked with the parties to complete the financial schedule of all their relationship property. Our system enables parties to complete separate financial disclosure and focuses on the identification, classification and valuation of all property.
Based on this, the Resolution Coordinator is able to give the parties a realistic expectation of costs. Parties who have lower value assets and debts are able to use a simple facilitation process. If a party is eligible for legal aid we will provide a fixed price in order for them to obtain a legal aid disbursement for these costs. Parties who have complex assets fall into our unfunded service and are advised of the costs based on the anticipated length of the mediation.
At this stage parties also obtain independent legal advice if they have not already done so and participate in coaching to ensure that they are prepared for mediation.
Fair Way will then appoint a mediator who is legally trained and experienced with the Property (Relationships) Act 1976. This ensures that they have the expertise to help resolve any relationship property issues.
In this case the mediator met individually with both parties in order to understand their respective concerns and objectives and the difficulties each party foresaw. For both it was important that they be able to continue to provide a safe and financially secure future for their children despite their disparate incomes. At the joint session the mediator assisted the parties in exploring different solutions in order to reach an outcome that would facilitate this. By focusing on the needs of the parties, the mediator was able to facilitate conversations around the different ways the parties could divide their relationship property in a way which they believed would ensure the financial stability of the children going forward. Importantly, they were able to negotiate an outcome which allowed each of them to maintain a home in the same area so that the children could easily spend time with both parents and could continue to live in the same community. The parties were also able to have meaningful communication about the needs of the children and their aspirations for them and how they would work together to meet these by using the time and financial resources available to them.
The mediator drafted an agreement which the parties then took to their respective lawyers. After further legal advice, lawyers are able to assist parties in formalising their relationship property agreement with the required S21 certification in terms of the Property (Relationships) Act 1976.
The parties are also now able to return to FDR mediation to finalise their parenting agreement as they have clarity regarding their respective financial positions.
By using a flexible process which used both FDR and Relationship Property mediation, these parents were able to find a way forward and were able to come to an agreement which they believed was fair and in them and the children’s best interest.
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