Why Consider Mediation When Contesting a Will in NSW-blog-featured-img

What is Mediation in Family Law

What is Mediation in Family Law

What is Mediation?

Mediation is an alternative dispute resolution process whereby the parties meet with an independent, impartial and neutral mediator who assists the parties to reach an agreement.

Mediation can take different forms including judicial settlement conferences, court-annexed mediation or private mediation.

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. 

Mediation is Compulsory for Will Contesting Cases in NSW

In NSW, all family provision claims in the Supreme Court are referred to mediation unless otherwise ordered by the Court. 

The Court will usually order a date for mediation at the second directions hearing and the parties should be prepared to inform the Court of their available dates for mediation at that directions hearing. 

The size of the estate will often dictate what form the mediation will take.

The Role of a Mediator in Will Contest Cases

A mediator’s role is to set the rules for the mediation, read and/or listen to each party’s submissions, assist the parties to identify and narrow the key issues in dispute, and to facilitate the exchange of settlement offers between the parties with a view to reaching an agreement.

If the parties reach agreement, the mediator will assist the parties to formalise an agreement in suitable terms. 

The Benefits of Mediation

The benefits of successful mediation can include:

    • More cost effective than a court hearing. 

    • More efficient than a court hearing. 

    • Achieves an early resolution. 

    • Less adversarial than a court hearing. 

    • Can reduce conflict between parties. 

    • Can strengthen relationships between parties. 

    • Avoids the need to give evidence in court. 

    • Reduces the potential risk of legal costs to the estate. 

The Mediation Process 

Appointing a Mediator

How a mediator is appointed will depend on what form the mediation takes.

In NSW, Judicial settlement conferences are often mediated by the Judge of the Family Provision List who encourages the parties to reach agreement without hearing the evidence or entering into the merits of the case.

Court-annexed mediation often involves the court registrar or other court officer acting as mediator. There is no charge for the mediator or the venue in court-annexed mediation. 

Private mediation is one where the parties jointly choose the mediator and the costs of the mediator and the venue are borne by the parties or paid by the estate (by agreement or court order). Private mediation is often more appropriate in larger estates.

Prior to Mediation

Preparing for mediation involves both formal steps (as prescribed by the relevant legislation, regulations and court practice notes) and informal steps (as governed by good practice).

Where a case is referred to court-annexed mediation, the executor (or the person appointed to represent the deceased estate for the purposes of the hearing) is required to file their original affidavits with the court registry no later than 7 days before the date of the mediation with a covering letter confirming the date of the mediation. 

If a case is referred to private mediation, the mediator is briefed with an outline of the matter and is provided with copies of the relevant court documents.

In either case, all legal representatives should ensure they have a complete understanding of the evidence and key issues and hold sufficient client instructions to facilitate productive and efficient negotiations. 

The Mediation Process

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

The process will usually start with the mediator explaining the rules for the mediation to the participants. 

Each party’s legal representative will then be invited to make an opening statement outlining their client’s position. 

One party, usually the applicant, will make an offer and the the mediator will facilitate the exchange of offers between the parties. This process continues until a settlement is reached or the process ends without a settlement. 

If a settlement is reached, the mediator will assist the parties to formalise the agreement in suitable terms. 

Post Mediation

If court-annexed mediation results in a settlement, the registrar or court officer will usually make the orders and vacate the next directions hearing, unless the orders sought require court approval, or an order extending time for the making of the application, in which case the court will consider the orders at the next directions hearing. 

If private mediation results in a settlement, the court may make the necessary orders in chambers and vacate the next directions hearing unless court approval is required, or there is an order extending the time for the making of the application, in which case the agreement will be considered by the court at the next directions hearing.

If mediation proves unsuccessful, the court will set a timetable for the preparation of the matter for final hearing, unless the matter is withdrawn.

Let Our Legal Experts Assist You in Mediation

Almost all cases can be resolved through negotiations and/or mediation. Our lawyers work closely with highly-skilled barristers to protect our clients interests through negotiations and mediation. 

Want to learn more?

Read more about how to contest a will in NSW here.

Read more about who can contest a will in NSW here.

Read more about how to gather evidence to support a wills contest here.

Disclaimer: the information in this article relates to NSW law and is general information only. It does not constitute legal advice and should not be relied upon. If you have a question or legal issue we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts and circumstances. 

Frequently Asked Questions

If mediation proves unsuccessful, the court will set a timetable for the preparation of the matter for final hearing, unless the matter is withdrawn. 

Importantly, negotiations can continue even after the formal mediation process has ended and ongoing negotiations often result in subsequent agreements. The parties can reach agreement anytime before the court hands down its decision following a court hearing.

The costs involved in contesting a will through negotiations and/or mediation will depend on the extent of legal work required. 

If a matter can be resolved through negotiations and/or private mediation before any court proceedings have been commenced, the costs typically range between $20,000 and $50,000, or more if the negotiations are protracted. 

Once a party commences court proceedings the costs typically increase due to the required preparation and filing of evidence. 

Once proceedings have been commenced, the cost to resolve a matter through negotiations and/or mediation (court-annexed or private mediation) can range between $40,000 and $80,000, or more depending on when agreement is reached.

The length of mediation will depend on the form of mediation.

The process of arranging mediation (either private mediation or court-annexed mediation) typically takes between 3-6 weeks to organise and prepare for and the mediation itself may take place over the course of one day. 

These times may vary depending on factors including the number of parties, the complexity of the issues, the size and nature of the estate, the parties availability and other factors.

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 (i.e., a Deed) 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. For these reasons it is important to have an experienced lawyer advise on and prepare formal agreements and related documents.

If you have a will dispute issue and think mediation is the best course of action for you, contact us now on [email protected] or 1300 414 844 for a confidential and obligation-free initial consultation. 

Our fee structures are tailored to each client and include sliding fee scales, payment plans, pensioner discounts, and conditional ‘no win, no fee’ costs agreements in select cases. 

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