FEATURE
Mediation project helps disadvantaged women divide small-value asset pools GABRIELLE CANNY, DIRECTOR, LEGAL SERVICES COMMISSION
W
omen who face significant disadvantage can be doubly disadvantaged in property settlement negotiations. To increase their access to justice, the Commonwealth Government has funded an Australia-wide pilot project to provide lawyer-assisted mediation services to separating couples with property pools under $500,000 (excluding superannuation). The program was announced two years ago and, in South Australia, it is delivered through the Legal Services Commission. This initiative is aimed at separating couples with small property pools and is directed towards achieving affordable, timely property settlements. It focuses on vulnerable parties who would ordinarily miss out on a grant of legal aid. This includes people who have experienced domestic violence within their relationship or who have other complex social factors that prevent them from representing themselves or paying for private legal representation. The small-value property dispute project is an extension of the Family Dispute Resolution (FDR) service provided by legal aid commissions in each state and territory.
ACCESSING THIS ASSISTANCE Parties can access the pilot project by making an application for legal aid in the usual manner. If they do not normally qualify for a grant of legal aid for their property matter, it may be considered for inclusion in this small-value property scheme. For a separated couple to take part in the scheme, at least one party must be in receipt of a grant of legal aid under the scheme. However, under this pilot initiative, support can also be provided to the other party at certain times to facilitate their attendance at the mediation conference; this assistance is provided to increase the chances of an out-of-court agreement being reached. The new project is highly responsive to client needs and strives to take an agile
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and holistic approach to the delivery of legal assistance to vulnerable individuals. Parties can be offered legal advice and other assistance (such as financial advice) where it is needed to help them reach an agreement, record their agreement and file the agreement with the court. Parties can also attend a review conference, where required, to encourage them to keep the matter out of court. If an agreement cannot be reached at a conference, lawyers can continue to provide advice to clients about their options and can assist them through the court process if necessary. The program was launched in SA in early 2020 and, despite early hurdles arising from the Covid-19 pandemic, over 180 applications have so far been accepted into the scheme, well exceeding the target of 100 cases. With the benefit of legal assistance under the scheme, some disputes have settled prior to a mediation conference being conducted. In the matters that have proceeded to a conference, an out-of-court settlement has been reached in 95% of cases.
CASE STUDY Kim’s story highlights the life-changing assistance this program can deliver. Kim (not her real name) is a mother of four who had been in a long-term marriage marked by physical, mental and financial abuse. Kim’s husband worked full-time and had substantial superannuation. Kim had limited income and no super. Upon separation, when Kim left the former matrimonial home, Kim’s husband refused to participate in discussions about the division of their assets (valued at $412,000, excluding superannuation). Kim could not afford legal representation. Although not eligible for a traditional grant of legal aid (because she did not have a dispute regarding children) Kim was accepted into the FDR small-property cases project. A degree of support was also provided to her husband to facilitate his participation in the mediation conference regarding the division of their assets. As a result of the assistance provided to each party, and
Legal Services Commission Director Gabrielle Canny
with the guidance of the Chairperson, an equitable out-of-court property settlement was reached at the conference. This has enabled both parties to move forward in their lives in a timely manner after their separation.
BUILDING ON THE SUCCESS OF FDR The small-value property project builds on the success of the wider FDR program that has operated for more than a decade and provides lawyer-assisted dispute resolution to help eligible couples reach out-of-court agreements. The FDR program provides a structured, independent and confidential forum for separating parties to resolve their family law disagreements outside court. A feature of the program is that it provides lawyer assisted shuttle-style dispute resolution rather than roundtable discussions. In this process, each party arrives through a separate entry and goes to a secure room where they have private discussions with their lawyer. The lawyers then meet in a conference room where they work through the issues with
