Whilst a significant number of people wishing to dispute a will worry about the effect of court proceedings on their time, wallet, energy and well-being, the reality is that most will disputes do not end up in court. In the majority of cases, will disputes are resolved by settlement and one of the most effective tools to reach settlement is mediation. Indeed, in New South Wales, mediation is now mandatory for family provision claims, and over 80% of claims are settled at mediation.
What is Mediation?
Mediation is a dispute resolution mechanism by which the parties involved in the dispute come together and with the help of a neutral third party (the mediator) attempt to negotiate a mutually acceptable agreement.
In will dispute matters, mediation sessions are usually attended by the executor of the estate and their legal representative(s), the individual(s) contesting the will and their legal representative(s), and the mediator.
What Does the Mediator Do?
The mediator is not there to provide legal advice, or even to authorise a settlement. Rather they are present to facilitate communication and promote understanding between the parties, assist the parties in identifying their needs, and prevent excessive arguing.
How is the Mediator Selected?
The most important thing when selecting a mediator is that they are impartial and fair. There are no hard rules about the selection process, but any appointment will have to be agreed upon by all parties. Private mediation is usually conducted by former judicial officers, lawyers, and other professionals with expertise in the nature of the relevant dispute. Whereas, court annexed mediation is conducted by court staff. Your legal representative will likely have mediators they have used previously, however if they do not, the Law Society of NSW has a list of approved mediators you can consult.
How is Mediation Organised?
A time and place for the mediation is set by mutual agreement of the parties. It is not necessary that mediation be held face to face and it can be conducted via video-conferencing software, however, the practical limitations such systems place on communication is sometimes undesirable.
The parties can be in one room, two separate rooms, a combination of both or any other arrangement according to their preferences. At Dormers, we typically conduct mediation using a private room for each party and a mediation room where the parties can meet.
What are the Benefits?
There are numerous benefits to mediation however some of the primary benefits are:
it is quicker and more cost effective than court proceedings;
it is private, whereas the results of court hearings are publicly available;
in order to facilitate openness and willingness to negotiate during the mediation process, parties to mediation cannot adduce evidence of communications made or documents prepared in mediation in court; and
it assists to narrow down the primary areas of dispute even if a court hearing is eventually required.
What Happens After?
What happens after depends on the result of the mediation. If an agreement was reached, the terms will be written up and signed and become legally binding, however, if no agreement can be reached the matter will likely proceed to court.
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