6 minute read
Mediation project helps disadvantaged women divide small-value asset pools
Women who face significant disadvantage can be doubly disadvantaged in property settlement negotiations.
Advertisement
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 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 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.
Legal Services Commission Director Gabrielle Canny
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
a chairperson who has qualifications in law and is an accredited Family Dispute Resolution practitioner. Throughout the process, each party receives legal advice from their lawyer. This shuttle-style approach is extremely effective, particularly for property settlement matters, ensuring safety and redressing any power imbalance where domestic violence or other issues impact on the ability to negotiate. FDR enables parties to avoid court proceedings that can be expensive, lengthy and deeply distressing. Just as importantly, it empowers parties to reach a settlement that they both agree to – rather than having a decision handed down by a judge. FUNDING EXTENSION
The small-value FDR property project highlights the benefits of lawyer-assisted dispute resolution services for vulnerable individuals. It is a relatively modest project that can make a big difference – to individuals, to their families, to our courts and the wider community.
The scheme will be evaluated by the Australian Institute of Family Studies (AIFS) at the conclusion of the pilot. Early analysis of the scheme indicates it has been highly successful. The Commonwealth has extended the scheme’s funding prior to the AIFS evaluation being completed.
Lawyers who have been involved in these matters are to be commended; their efforts are having far-reaching consequences at a critical point in the lives of people who face disadvantage.
HOW CAN LAWYERS AND CLIENTS GET INVOLVED?
Clients with small property pools should be encouraged to seek advice about whether they may be assisted under the scheme. Lawyers and clients can get more information about the scheme by calling the Commission’s FDR Unit on (08) 8111 5534 or by visiting the FDR page on the Commission’s website (www.lsc.sa.gov.au). B
A roundup of recent Society meetings & conferences
ROSEMARY PRIDMORE, EXECUTIVE OFFICER
3 August 2021 Aboriginal Lands Parliamentary Standing Committee
The President, Bec Sandford and the Chair of the Aboriginal Issues Committee, Mr Christopher Charles appeared before the Aboriginal Lands Parliamentary Standing Committee to speak to the Society’s written submission to the Aboriginal Governance Inquiry.
18 August 2021 Meeting with Robert Simms MLC
Bec Sandford and the Chief Executive. Stephen Hodder met with the Honourable Robert Simms MLC, Greens SA at Mr Simm’s instigation, and discussed questions raised by Mr Simms as to the Statutes Amendment (Identity Theft) Bill 2021 that was presently before the Parliament.
The Society was represented by Bec Sandford at the formal consultation convened by the Supreme Court in relation to applicants for appointment as Senior Counsel.
26 August 2021 Meeting with the President of the SAET
Bec Sandford met with the President of the SA Employment Tribunal (SAET), the Honourable President Justice Dolphin to discuss SAET visits to regional areas.
17 and 18 September 2021 Quarterly meetings of Law Council (LCA) Directors, Conference of Law Societies, CEOs of Law Societies; and joint CEOs
Bec Sandford (as President and also as Society appointed Director of the LCA) and Stephen Hodder variously participated in the above quarterly meetings, which were held via videoconference. Key topics of discussion included the LCA’s development of a National Model Protocol for firms and practitioners to address sexual harassment; the LCA’s report of its “Lawyer Project”; the Victorian Justice Department’s mandate that lawyers report of misconduct by other lawyers; Covid impacts on the profession; mandatory vaccination; a revision of the LCA’s policy position on the death penalty; legal professional privilege and the Australian Taxation Office; progress towards a reversion of Rule 42, “AntiDiscrimination and Harassment” of the Australian Solicitors’ Conduct Rules (which is before the Standing Committee of Attorneys-General);
23 September 2021 Dive In Festival – 23 September 2021
At the Dive In Festival (global festival for diversity and inclusion in insurance) Bec Sandford presented on the topic of sexual harassment in the legal profession. B November 2021 THE BULLETIN 23
