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What causes conflict in Property Mediation?



Separation is an emotionally charged rollercoaster where we can be swept along unwillingly on this rough ride gritting our teeth, covering our eyes and gripping on tightly not knowing where our ultimate destination will land. During this timeframe we can be so scared, fearful of the unknown and feel out of control of our life that has turned upside down.


To gain control amidst the chaos we can become so focused of the plight for ourselves, we can forget separation and divorce affects the whole family. As a family we need to seek a WIN/WIN long term solution because like marriage, in separation we are in this together. Unite to uncouple and transition to a new family structure.


It takes time to get over the shock, denial, anger, guilt, shame, sadness of the breakup……..

so, it is important to separate how we feel about the breakup when it comes to negotiating the distribution of the family wealth. It’s important to be fair with a goal to enable both parties to rebuild their lives.


There are many conflicts in mediation between parties according to Benjamin & Irving[1];


Power, Security, Compensation, Painkiller and Revenge


Power and control through a sense of entitlement can be seen when a main breadwinner feels angry that the law forces them to share “their” money with their spouse, such as;


“Why should I give you anything, I worked hard for my money so you didn’t have to work and enjoy the lifestyle!” versus


“I took care of the kids and the house so you could focus on your career, an opportunity I didn’t get!”


Both parties feel they made sacrifices hard work/long hours versus loss of opportunity of a career and financial independence.


Security is sought to avoid poverty after separation through seeking a larger % of the family wealth pool due to inequality of income, little or no superannuation, losing a lifestyle they have become accustomed to, and future earning capacity.


“I need a bigger percentage of the family wealth pool because I don’t have the earning capacity to set myself up financially to rebuild my life” versus


“I have worked so hard to support the family financially, it’s only fair I should get at least 50%”

Both parties fear the financial impact of separation and the effort involved to gain financial security of having a roof over their head.


Compensation is where both parties feel they should be rewarded for their contribution to the joint assets and expect to be compensated accordingly but neither party value the contribution of the other party.


“I paid all of the mortgage and rates, so I should get the biggest percentage of the sold asset” versus


“You may have paid the mortgage, but I paid for all the repairs and renovations that added value to the property and paid for the utilities too”


Both parties need to consider the length of time they have been in the property and that direct and indirect contributions should be factored into the negotiations.


Painkiller or revenge can occur when one party feels they are the “injured” one in the separation so believe they should get a larger percentage of the asset to help soothe the pain or to take revenge for their spouse betraying or hurting them.


“I didn’t want this divorce, you decided to leave so I should get the house” versus


“Let’s just split everything 50/50 so we can just go our separate ways”


Both parties need to be compassionate toward the other party understanding they are at opposite ends of the grief cycle where the one being left is at the beginning feeling sad, angry and rejected. Whilst the one who is leaving is at the end of the grief cycle where they have accepted the relationship is over and are eager to move on with their life.


There can be sentimental assets which are important to the parties such as jewellery, gifts, favourite furniture or art pieces to negotiate who will get what. It is important to understand the emotional attachment someone has towards certain items and have compassion and fairness when negotiating. List out what are sentimental to each party to see what can be granted to them versus what needs to be negotiated on.


There can be sentimental anguish about losing the family home as that is where they brought their new born babies' home, notches on the door frame of kids' growth spurts or even the old family dog buried in the back yard. Treasured memories can make it hard to let go of certain assets.


Separation is a time of loss; loss of relationship, loss of family home, loss of time with the children, loss of financial security, loss of shared friends and loss of perceived future.


Mediation shouldn’t be a battle ground, it should be where both parties compromise, collaborate and have compassion to create win/win solutions so both parties have a foundation to rebuild their lives.


Author – Cheryl Duffy, Divorce Coach, Mediator & Author


https://www.thedivorcecentre.com.au/


[1] Benjamin and Irving n 2 pp 305-314

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