About the Author
Donna Nguyen
Published on January 16, 2022
- Mediation
- Conciliation
- Family Dispute Resolution (FDR)
- Arbitration
- Lawyer-assisted Negotiation
This article discusses how to use Conciliation to negotiate with your former partner following separation or divorce. This type of formal meeting is called a Conciliation Conference.
What is a Conciliation Conference?
A Conciliation Conference is a court-based mediation. This means that a Registrar of the Court runs the conference as a judicial officer with the power to make certain orders.
The Registrar is independent of both parties, and is there to try and help you to reach your own agreement about parenting and/or financial matters. The aim of the Registrar is to help you explore options for settling your case without any further legal action. The Registrar can record the agreed terms of settlement from a Conciliation Conference and these terms can be formalised into binding court orders.
The point of a Conciliation Conference is for both parties to make a genuine effort to conclude their settlement negotiations. This requires both parties to take a practical approach and attend with a spirit of compromise.
The advantage of this type of conference is that you and your former partner are fully in control of the outcome, whereas if the matter proceeds to court then the decision will be taken out of your hands.
How to prepare for a Conciliation Conference?
You need to prepare carefully for the Conciliation Conference to give you and your former partner the best chance of succeeding in your settlement discussions. An important step is disclosure. When the Court makes an order for a Conciliation Conference, the court staff will instruct you as to your duty of disclosure. It is important that you disclose all facts and documents relevant to your application. If you do not, it may lead to the Court making a greater order in favour of the other party.
The parties should exchange documents in sufficient time for them to be considered (at least two days before the Conference). The type of conciliation conference document you need to provide depends on the complexity of the financial circumstances of your case.
Case Outline
A Case Outline sets out the agreement you wish to reach and the legal reasons why you seek that outcome.
A financial matters document includes any contributions you have made to the relationship and the future needs of you and the other party.
A parenting matters document sets out the reasons why your proposal is in the child’s best interests.
Financial Matters
For financial issues the parties should include information on:
- The financial contributions each party brought to the relationship;
- Any inheritances, gifts or compensation payments that either party received after they began living together;
- For PAYG earners, the three most recent taxation returns and assessments;
- For business owners, financial statements for each corporation, trust or partnership for the last three financial years (including balance sheets, profit and loss accounts, depreciation schedules, business activity statements, and taxation returns). Also, a recent annual return listing directors and shareholders, the corporation’s constitution, and loss accounts;
- For any trust, the trust deed;
- For any partnership, the partnership agreement;
- The value of any superannuation, including by providing recent superannuation documents and account statements;
- A market appraisal of any item of property (such a a free market appraisal by a real estate agent of real property); and
- Records in relation to any purchase or disposal of property in the 12 months prior to or since the separation, as well as any increase or reduction of liabilities since separation.
For parenting matters, the parties should include:
- Any expert reports from Family Consultants/Child Experts;
- Evidence from any child welfare authority; and
- Allegations or evidence of child abuse.
What happens at a Conciliation Conference?
At the start of the Conciliation Conference, the Registrar will meet with you and your former partner to explain the process. The Registrar will provide general information and ask questions about the main issues in dispute. The Registrar cannot give you legal advice but he or she can provide clarification of the relevant legal principles so you have a realistic idea of whether you should compromise your position.
All discussions at the Conciliation Conference are confidential and “without prejudice”. This allows you and your former partner to speak freely without fear that what you say will later be used in Court.
If you have concerns about being in the same room as your former partner, you can arrange to stay in a separate room throughout the conciliation. This is a particular benefit if there is a history of domestic violence in your relationship. In that case, the Registrar will visit each party in turn for a short discussion.
After the introductory explanation, the Registrar will conduct separate interviews with you and your former partner to come up with different settlement options. If you have a lawyer present, they will help you to understand the process, and effectively negotiate on your behalf on the basis of your instructions.
The Registrar will summarise any agreements that you and your former partner reach at the end of the Conference.
What happens after a Conciliation Conference?
If you and your former partner reach a final agreement at your Conciliation Conference, your lawyers or the Registrar can draft Minutes of Consent Orders. This document set outs the terms of the agreed settlement.
Both you and your former partner then sign the Minutes of Consent Orders, and the Registrar can make these into Enforceable Court Orders on the day. As the name suggests, the Court will enforce Enforceable Court Orders, so neither party can go back on the agreement later.
What will the conciliation conference cost?
The fee for a Conciliation Conference is a fixed-fee paid to the court, instead of the larger fixed fee or hourly rate that is common in private mediations.
Each party is responsible for their own legal fees for any legal representation they have at the conference.
If the Court considers that your case is not eligible for a Conciliation Conference, the Court can order that the parties attend a private mediation. This type of mediation is usually with a barrister who practices in family law and acts as the mediator. Each party is generally liable to pay half of the mediator’s fees.
How long does a conciliation conference go for?
The Conference takes about 1 to 2 hours but can take longer if the Court agrees.
Procedural Hearing
If you and your former partner do not reach a final agreement at the Conciliation Conference, then the Registrar will conduct what is called a Procedural Hearing. The procedural hearing will take place immediately after the conciliation conference. The Hearing will generate procedural orders to:
- Comply with further disclosure of documents;
- List the case for hearing and:
- pay the hearing fee;
- file undertakings as to disclosure;
- allocate a date for a compliance check about 21 days before the first day of the hearing;
- allocate the first day of hearing before the judge;
- Clarify disputed items in the balance sheet;
- Clarify any issue arising out of a statement made by a party in a financial questionnaire; and
- If the case also involves parenting issues:
- refer parties to family counselling, family dispute resolution and other family services;
- appoint an independent children’s lawyer; and
- each party must complete and file a parenting questionnaire.
Here For You
Unified Lawyers can provide guidance on potential settlement options available for your specific circumstances. The team can provide advice about your legal entitlements and negotiate on your behalf at the Conciliation Conference. Please call 1800 431 519 today.
Published on January 16, 2022
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