When a loved one passes away, disagreements can arise between beneficiaries, executors and others who may have a claim to any part of the estate. These issues can quickly escalate into legal disputes that are stressful, emotionally draining and costly.
Mediation provides a constructive and cost-effective alternative to court proceedings, helping parties resolve disputes in a confidential and cooperative environment.
What is Mediation?
Mediation is a confidential process where parties meet with an independent mediator (usually a lawyer), to work towards a mutually acceptable resolution. Unlike a judge, the mediator does not make decisions but assists parties to communicate, clarify issues and explore practical solutions, whilst remaining independent.
Mediation can occur in two ways:
- Private Mediation: Arranged by the parties themselves prior to there being any litigation on foot; or
- Court-Ordered Mediation: Directed by the court as part of litigation.
Sometimes, both types of mediation may take place. For example, a private mediation arranged by the parties themselves may be followed by a court-ordered mediation if the dispute is not resolved and formal litigation is commenced. Regardless of how it is initiated, the mediation process is generally the same.
How Does the Mediation Process Work?
The mediation process generally follows these stages:
Introduction
The mediator explains the process and their role as a neutral facilitator.
Opening Statements
The mediator explains the rules, confidentiality and process and each party (often via his or her legal representative) has the opportunity to present their position.
Discussions
The mediator facilitates communication between the parties (and/or their legal representatives), helping them clarify the issues and understand each other’s viewpoints. The parties mediate in separate rooms, often with legal representation, to discuss the issues.
Negotiation
Parties, with the mediator’s guidance, explore options and work towards mutually acceptable solutions.
Outcome
- If an agreement is reached, terms are documented and signed on the day.
- If the dispute is not resolved, it may proceed through the formal litigation path (which might already have commenced). This process often includes a court-ordered mediation, unless a private mediation has already taken place and another mediation may not be necessary in the circumstances, and, if still unresolved, it can lead to a hearing or trial to finally determine the matter.
Why Choose Mediation?
- Cost-Effective: Avoids high litigation costs, such as lawyer’s fees and court fees, making it a more affordable option.
- Faster Resolution: Often completed in one or a few sessions, unlike court proceedings that can take months or years to finalise.
- Confidential: Discussions remain private, unlike public court hearings, protecting sensitive family and financial matters.
- Preserves Relationships: Encourages cooperation and respectful dialogue under a mediator’s guidance, reducing hostility.
- Flexibility: Unlike litigation, which is confined to strict legal rules and remedies, mediation allows parties to shape the outcome, explore creative solutions and address underlying issues.
Are There Any Downsides?
Whilst mediation offers many benefits as we have outlined above, it is not suitable for every situation.
Some potential disadvantages include but are not limited to the following:
- Lack of Public Oversight: Mediation happens behind closed doors and confidentially, reducing transparency which may be in the public interest, as compared to court proceedings.
- No Legal Precedent: Mediation does not create case law, making outcomes harder to predict compared to published court decisions.
- Enforcement Challenges: Since mediated agreements are private and do not always require the approval or sanction of a court, enforcing them may require the parties to return to court, which can be costly and time consuming.
Final Thoughts
We have seen how mediation can help families avoid lengthy and stressful court proceedings, the costs of which can take a significant toll on emotional and mental wellbeing and further strain relationships. Despite some potential downsides, mediation remains the most effective way to resolve disputes, as it is both cost-effective and efficient.
If you are facing an estate dispute, seek expert legal advice to prepare for mediation and protect your rights. Contact iWills Legal on 03 9598 948 to discuss your options.
