When clients ask me about challenging a Will, or making a claim against an estate, I am quick to share the realities of litigation.
Litigation is like a treadmill. Once you’re on, it’s very difficult to get off.
If you have ever endured a dispute in a deceased estate, you may have participated in a mediation.
What is a mediation?
Mediation is a process where the parties of a dispute come together and attempt to resolve the dispute by agreement.
A mediator who is generally a neutral and impartial person coordinates the discussions and negotiations of the parties.
In a dispute concerning a deceased estate, whether it be a challenge to a Will or a claim against the estate by a loved one (termed an ‘eligible person’), mediation is generally mandatory before the dispute is heard by the Court.
How does the mediation process work?
If you are due to participate in a mediation for an estate dispute, you are probably asking questions like, ‘what is the day going to be like?’, ‘do I have to see the other parties?’, ‘will I have to speak?’
Generally speaking, mediation is organised in the following manner:
- The parties will agree on a date, time and location for the mediation to take place.
- The parties will agree on who will act as the mediator. The mediator is normally a senior solicitor or barrister who is neutral and impartial party in the dispute.
- Prior to the mediation, the parties will agree on what material is provided to the mediator. This should include some form of chronology of the matter, material that the parties have filed with the Court and correspondence exchanged between the parties.
A day of mediation usually proceeds as follows:
- Normally, the parties will arrive and remain with their respective legal teams in separate rooms.
- The mediator will seek out the parties and their legal teams individually and introduce themselves. This provides an opportunity for the mediator and the parties to speak personally privately.
- If there is anything specific you wish to share with the mediator, it is always best to raise it with them at the beginning of the day. Things you may wish to raise include who you do not wish to sit next to in the joint session or that you do not wish to speak at all in the joint session.
- The parties will then come together for what is generally called a ‘joint session’. This is where the mediator brings all the parties and their legal teams together in one room. The mediator will introduce everyone and speak to the mediation process and how the day will proceed.
- In the joint session, the mediator will invite each of the legal representatives (either the solicitor or the barrister) to speak to their client’s position in the dispute and ultimately what they are seeking. It should not be necessary for the client to speak personally.
- After all the legal representatives have spoken, the mediator will wrap up the joint session by making some closing comments in relation to the dispute.
- At the conclusion of the joint session, the parties will part ways to their individual areas or rooms.
- The mediator will then visit each of the parties to exchange comments in relation to the dispute and more than likely settlement offers being made from the other parties.
What are the benefits of mediation?
The unfortunate reality of litigation, and ending up in a Court room, is that the parties lose the ability to control the outcome.
The result is eventually determined by a judge who can only turn their minds to the material and evidence put before them as part of the proceeding. A judge is removed from the matter and bound by the law.
Conversely, mediation provides the parties with a real opportunity to control the outcome of the dispute and negotiate an agreement. In many circumstances, this can provide a by far more favourable outcome.
In summary, the benefits of participating in a mediation include:
- The ability to control the outcome of the matter.
- The possible preservation of relationships between the parties.
- Reducing the amount of money the parties spend in legal fees.
- Understanding the priorities of the other side and their position.
Ultimately, if the parties are not able to resolve the dispute at mediation, the matter can revert to the litigation process and continue through the Courts.
The day of mediation is protected insofar as the parties cannot refer back to offers made during the mediation and the comments exchanged. In effect, if mediation is unsuccessful, the slate is wiped clean, and the matter may continue on.
If you have mediation coming up, or you are in an estate dispute that you believe should be mediated sooner rather than later, please do not hesitate to contact us.
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