What is Property FDR?
We are using the term property FDR to refer to negotiations to reach a property settlement heads of agreement as well as financial negotiations about issues to do with money which occurs in Family Dispute Resolution Mediation.
The major role of the Family Dispute Resolution Practitioner is to make sure that there is procedural fairness and informed consent in terms of the financial negotiations.
Often there is one party with greater financial understanding so we have to work to make everything very clear.
As accredited Family Dispute Resolution Practitioners the mediator can’t abdicate their responsibilities when facilitating property mediation and must make sure that they are competent, understand the major concepts, components and process to competently facilitate property FDR.
The mediator is not in a role where they should be providing legal advice which includes telling clients what a judge would do. While this might be tempting for experienced practitioners especially those who are legally qualified and experienced it is an ethical minefield.
The role of the FDR facilitatiting Property FDR is to help the clients to understand their situation (property pool), their options and the issues that are relevant in their case in terms of considerations and future needs. The considerations and future needs are factors that are considered by the court and also may relate to factors that are unique to the specific family.
Property FDR training
We strongly believe that NMAS Accredited mediators should not be offering to facilitate property FDR. We are hopeful that the Family Law Review will put an end to this practice or at least reduce it by requiring evidence that mediation has been attempted from a FDR Practitioner similar to section 60i Certificates.
NMAS Mediators can become competent and accredited by completing the CHC81115 – Graduate Diploma of Family Dispute Resolution. If considering this training do your due diligence and make sure that your training provider is going to provide you with appropriate training in property mediation.
Our Professional Development Options
To help upskil those who have not been adequately trained or who were trained but have not been facilitating property mediation we have available two professional development options.
One is focused on professional development only and the other includes the professional development support as well as opportunity to practice and develop skills and then be assessed for a Certificate in FDR Property Mediation. https://www.mediationinstitute.edu.au/certificate-property-mediation/
The support package is for twelve months because we think that practitioners are going to need a lot of support to get through the changes that will result from the Family Law Review.
What’s in Property FDR Training?
The process we teach is the modified Property FDR.
The order is reversed from parenting FDR where we don’t ask parties to do opening statements and form an agenda. After the mediators opening statements in the first session we go straight into determining the asset pool.
Property FDR Process
- Mediators opening statements – confirming that they are there for property and not other issues.
- Determining the asset pool – this requires negotiation of values and often a bit of encouragement to list everything. We have a duty to require full disclosure and not allow parties to “leave off” assets that they don’t want to distribute. Sometimes additional information or valuations are needed at this stage. You will have tasked them with bringing the information needed during the pre-mediation process but not everyone does their homework.
- Discuss considerations this relates to the considerations that the family court would think about “how the court decides” as well as any specific considerations that the couple may have in their specific situation
- Considerations of options and proposals. There are a few ways that this can be done from a positional style negotiation of percentages, a more interest based discussion of needs or something in the middle which is to find out what they agree on and document that and then negotiate the sticking points. We will teach you about the range of approaches as the approach taken depends on the client situation.
- Clarification and reality testing this is when we help them to work out if what they have proposed is actually able to be implemented e.g. if someone says they will get a loan to buy the other out do they have the borrowing capacity, does the proposal fit within their legal advice recommendations etc Sometimes people want to get more legal advice at this stage, get financial advice about capital gains or other tax implications or speak with their bank about borrowing. Ideally this has been done before the mediation but the reality is that sometimes proposals don’t get considered before the mediation day.
- Documenting points of agreement and action steps. This is where you document who is doing what and when. Unlike parenting where a Parenting Plan is usually sufficient or even recommended with property they usually need to have either a Consent Order or Binding Financial Agreement written up. Certainly if there are going to be title transfers, debt issues or superannuation transfers. That means in most cases a lawyer is going to be reviewing what you provide.
Lawyers are often VERY critical of the whiteboard print out that most Relationships Australia or Family Relationship Centre mediators produce as the documentation from their mediations. That is because simply printing off a table doesn’t give any of the who, what and when information that is critical to write up orders. In fact there has not been any discussion about these things as the mediator has little understanding of what is required for the next step in the process. Unless these issues are raised and discussed by the parties there is a high risk that the agreement will fall apart when it gets to the lawyer resulting in the need for a lot of expensive lawyer negotiation or even a period of wasted time and money in the family court.
The other aspect we cover in our training is financial issues such as spousal support, touch on child support (although we recommend that the child support agency is used as they have extensive powers in terms of collecting child support) and other issues to do with money.
The mediators job is to help them to negotiate values for their assets and liabilities and if necessary support the exchange of valuations, bank account records, super statements etc.
We have an online course which goes through the whole process and we’ll also be doing a series of webinars to discuss tutorials as part of the training and support program including:
- Introduction to Property FDR – an overview from enquiry to agreement documentation and beyond
- Property FDR Pre-Mediation – exchange of documents, is FDR the appropriate process and homework
- Property FDR – the process in detail including demonstrations of different approaches from Whiteboard, through two types of excel spreadsheet and FamilyProperty software
- Legal Supervision – Q&A session with a family lawyer / FDRP to help FDRP’s to understand the context and consequences of their work
- The Family Law Review – what is being proposed and how will it impact FDRP’s if implemented?
There is too much content to just do it as a single webinar or for people to learn adequately by just attending webinars so we have taken the approach of duplicating the property training from our Grad. Dip. Course as a stand alone course for people who want to learn properly how to facilitate property FDR.
Those who want to be certified have to demonstrate that they are competent which will include role plays (via video) unless they or their organisation want to organise for a trainer to travel to their location.