Using mediation to resolve estate disputes

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Mediation is a highly successful method of dispute resolution and, although potentially unavoidable in an estate dispute, there are many benefits to participating in a mediation.

In estate disputes, parties are often required to participate in mediation.  A Judge might make an order requiring parties to participate in a mediation or the parties might consent to orders requiring mediation as part of a plan for the conduct of litigation. For certain types of dispute, the Court is likely to refuse to make a determination unless the parties have made a genuine attempt to resolve the dispute themselves. In New South Wales and, most usually in Queensland, mediation will be required.

It is important to properly prepare for and appreciate the benefits of mediation to make the most of its advantages.

  1. Your Interest – Your Decision

Mediation allows people to have control over the terms of settlement.  Other methods of dispute resolution leave the decision to a third party, such as a Judge.  When control over the decision is lost, the outcome can be something much harder to accept.

  1. Your Time – Your Money

Court proceedings can become expensive very quickly.  A great deal of preparation is required on both sides before a hearing by a Judge.  The additional preparation required and availability of the courts, may also delay a hearing.  Mediation can occur faster and will usually involve less expense.  This expediency leaves open more options as well as leaving more money available for settlement, resulting in better outcomes.

  1. Keeps It Informal – Less Stress

Usually a mediation will be held in a conference style facility.  It is kept as relaxed as possible and parties are given plenty of time to consider the options and get advice and assistance as needed.  Alternatively, Court hearings require parties to comply with various formalities and there is very little time for asking questions and giving consideration to what is happening.

  1. Money Matters – but it’s not everything

A settlement at mediation does not have to just be about the money.  At mediation a settlement can include agreement about things that the Court has no power, or inclination, to deal with.  There may be things beside money that are just as, if not more, important to you.  Mediation is an opportunity to resolve disputes over anything from the disposal of ashes to what happens to a family memento which cannot be sold but is worth a lot more than money to someone.  Items of sentimental value can be brought to the mediation and it can often be a great relief if agreement can be reached and the items distributed that day.

  1. Salvaging relationships

Often estate disputes will involve parties who are related to each other and litigation can lead to irreparable fractures in those relationships.  The less informal nature of mediation can allow for relationships to be salvaged as all parties can work together and play a role in deciding the outcome of the proceedings.  The chance to confer with the other parties throughout the day can sometimes lead to a greater understanding of each party’s motivation and allow for a resolution that takes into account each party’s subjective reality.

  1. Confidentiality

A further benefit of settling proceedings at mediation is that confidentiality can be retained.  Where an estate dispute goes to trial, the decision of the Judge will be published with full names of all the parties together with the Court’s reasoning, often including an assessment of the conduct and character of various players.  If you settle at mediation, there may be no published decision available to the public.

It is important to keep in mind the various benefits and advantages of mediation when preparing to attend to ensure that you get the most out of this method of alternative dispute resolution.   When clients are fully prepared and have a thorough understanding of the mediation process, they have a sense of control over their proceedings, which can often be very emotional.  As an added bonus, time, money, and even relationships might be saved.

Kate Donnan, Associate and Angela Teufel, Solicitor

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