What is Mediation?

Mediation is an alternative dispute resolution process, when opposing parties formally engage an independent, neutral mediator, who assists the parties to reach an agreement. The role of mediation is to promote a faster and more cost effective resolution. 

Mediation is a process that can take different forms including judicial settlement conferences, court-annexed mediation or private mediation. The goal is to resolve the dispute outside of a court setting, as well as reach a settlement agreement.

The success of mediation will depend on each party’s willingness and ability to negotiate on matters which often involve deep conflict between immediate family members.

It is usually advisable to participate in a mediation in a contested will case in an attempt to resolve the dispute outside of court.

What to Expect When You Attend Mediation in NSW

Mediation in New South Wales involves a number of people attending the mediation, including solicitors, the estate’s executor (and other representatives from the deceased estate), the administrator of the estate, the mediator themselves, probate lawyers, and any other interested parties and their legal representatives.

Mediation is designed to be confidential, and reduce the need to go to court to settle a dispute.

It is strongly suggested you seek legal advice before entering into any mediation in NSW.

What Are the Benefits of Mediation in a Will Contest Case?

There are many advantages of mediation in the wills contest process. Estate mediation can be used in a wills contest to resolve estate disputes. For example, someone seeking a family provision claim on an estate may be persuaded to participate in mediation before taking the matter to court, saving significant time and costs on both sides.

If a matter can be settled in the mediation stage, it usually negates the need for litigation and a court hearing. It can enable parties to the mediation to reach a mutually agreeable outcome, and settle the dispute without the need for the significant costs associated with court proceedings.

Mediation can also often result in a quicker outcome.

The Process of Mediation in Estate Disputes

Introduction and Setting Ground Rules

The mediation process will differ in every case and will usually depend on the individual mediator’s preferences.

The process will usually start with an introduction by each participant of the mediation, and the mediator explaining the rules for the mediation to the participants.

Opening Statements

Each party’s legal representative will then be invited to make an opening statement outlining their client’s position. Each party will highlight the strengths of their case and the weaknesses of the other side’s case, in a respectfull manner.

Joint Discussion

The parties and the mediator will then engage in discussions “across the table”, with a view to reaching agreement where possible or otherwise narrowing the remaining issues in dispute. Throughout the mediation, the parties will break away for private discussions among their own parties.

Private Discussions

During negotiations, the parties will break away and have discussions among themselves and their legal representatives or advisers. This allows the parties to have private discussions with their own legal representatives and advisers to receive further advice, before they continue with the mediation in the joint discussion forum.

Negotiation

Throughout the mediation, each party will usually make one or more offers and they will ask the mediator to help facilitate the exchange of offers between the parties. This negotiation process continues until a settlement is reached or the process ends without a settlement.

Agreement or Impasse

If mediation is successful and the parties settle at mediation, the mediator will assist the parties to formalise and resolve the dispute by agreement. The parties may sign a mediation agreement in the form of a Heads of Agreement or Deed of Family Arrangement. Appropriate legal advice should be sought before signing any agreement.

If the parties do not reach settlement at mediation, the parties can terminate the mediation and negotiations can continue after the mediation process. If a settlement cannot be reached and there is no further prospect of negotiations, the matter may be heard by the court, unless the matter is withdrawn.

Follow-Up

The extent to which an agreement is legally binding will depend on the nature and the terms of the agreement.

If the parties reach agreement and want the agreement to be legally binding they may formalise the agreement by setting out the terms of the agreement into a legally binding document signed by each party and/or obtain the approval of the court in the form of court orders.

There may be occasions where the terms of an agreement are not legally binding because of illegal or unenforceable terms or for public policy reasons.

Choosing The Right Mediator for Your Estate Mediation

How a mediator is appointed will depend on what form the mediation takes. For example, court-annexed mediation is where a court will order the parties to attend mediation and the court registrar or other court officer will act as mediator. There is typically no charge for this service. In some cases, the parties are required to participate in mediation.

Private mediation is one where the parties jointly choose the mediator and the parties to mediation will share the mediator’s fees and costs of the venue. Private mediation is often more appropriate in larger estates, or when there is less certainty an agreement cannot be reached.

A mediator’s role is to set the rules for the mediation session, read and/or listen to each party’s submissions, guide the discussion, assist the parties to identify and narrow the issues in dispute, and helping the parties to agree to a resolution. The mediator is there to help the executor or administrator, along with opposing parties, reach a mutually acceptable agreement, through the exchange of settlement offers.

If an agreement can be reached in mediation, the mediator will assist the parties to formalise an agreement in suitable terms.

Family Provision Claims and Mediation

Mediation can be an effective way to try to resolve a family provision claim. When seeking to settle a family provision claim, or any other claim against an estate, mediation may hasten the terms of settlement for the fair distribution of estate assets.

Using a Wills and Estates Lawyer for the Mediation Process

Contact us at Empower Wills and Estate Lawyers for more information about how we can assist you in an upcoming mediation. We give legal advice on all such matters including estate planning, binding settlement agreements, a list of experienced mediators, court rules and practice notes, and how to make decisions as to whether and how to engage in mediation.