all day every day. That's all we do.
In contested Wills cases (family provision) mediations are compulsory. A claim is usually commenced when the person contesting (or his or her solicitor) notifies the executor that there is going to be a claim upon the estate for provision or further provision.
The next step is for the parties to try to negotiate and to try and settle the amount of provision for the claimant. If a settlement is not achieved the claimant commences proceedings in court and after about 4 or 5 months and the filing of affidavit evidence in court and upon the executor, the court will make an order that the parties attend mediation in an attempt to resolve the dispute.
If the parties agree at mediation the case comes to an end. The court is notified of the variation to the Will making provision or further provision for the claimant.
If there is no agreement at mediation the matter is referred back to the court for a date to be set for the hearing of the matter before a judge. The hearing will normally take place about 6 months after the mediation.
Mediations may be booked with private legally trained mediators or with court appointed legally trained mediators. Mediations are usually half day or whole day depending upon the complexity of the case. Court mediations are free of mediator’s costs however lawyer’s costs are still payable. Private mediators costs are usually shared by each side or if the claimant has no funds the estate may pay.
The three big advantages of mediation are… Firstly, the parties have a say in the negotiations personally. Secondly, if there is a settlement there is no appeal and the matter is usually completed on the same day. Thirdly, the legal fees saved are enormous.
1. What is mediation?
Mediation is an attempt to reconcile disputed matters.
2. When is mediation used in contested will disputes and family provision cases?
In most states including NSW, mediation in family provision cases is compulsory. You cannot proceed to a hearing before a judge without first mediating your dispute.
3. When is mediation used in proceedings other than family provision cases?
In virtually all litigation cases these days (disputed legal matters) the court requires the parties to attempt to settle their dispute before asking for a court to determine the issue.
4. Where is mediation held?
Wherever the parties agree. In contested wills cases, the place is usually in a room situated in the Supreme Court in the capital city or rooms nearby.
5. How do you arrange to have a mediation in contested wills matters?
Usually through your solicitor. It is often too difficult to do so yourself because you need to appoint a mediator and then there are certain “rules” each party is to comply with which need to be explained and adhered to.
6. How much does it cost to mediate?
The cost includes the cost of your own solicitor and sometimes the cost of a room and the cost of the mediator. Each state is different.
7. What is the cost of mediation in NSW for contested wills matters?
In family provision cases in NSW (contested wills) the Supreme Court provides free rooms and a free mediator. Your only cost is your own solicitor.
8. What is the cost of mediation in Queensland for contested wills cases?
In Queensland you have to pay for your own solicitor and share the cost of the room and the mediator.
9. What is the aim of mediation in contested wills cases?
The aim is to compromise and settle your dispute on the day or shortly thereafter and not proceed to a court hearing.
10. What does the mediator do?
He or she will firstly explain “the rules” and the “confidentiality conditions” however will not take sides or give you any legal advice. The mediator will simply give you commonsense advice during the process to assist you in resolving your dispute.
11. When contesting a will, what does my solicitor do at mediation?
Your solicitor will “argue” any points of law with the opposing legal representative and negotiate a settlement on your behalf.
12. Where does everyone sit in the mediation room?
Sometimes people are happy to fully participate and sit in the same room from the beginning. Sometimes people do not want to sit in the same room with their opposition. In that event, the parties sit in separate rooms.
13. Do you have private talks with your legal team?
Yes. When the mediator and the legal representatives have their say at the beginning of a mediation it is the usual practice for each team to go into a room of their own to discuss offers of settlement. There they stay until the matter is resolved.
14. How long does a contested will mediation take?
Mediation is either a whole day (six hours) or half a day (three hours) process depending upon the complexity of the matter.
15. What about confidentiality at mediation?
Everything said and done at mediation is confidential. Nothing verbal or written can be taken from the room and used in court.
16. Why is mediation usually successful?
Because you and your opposing party have as much involvement in the decision as you like and you make the final decision when it comes to settling the dispute. Rules of law do not apply. In court however, you have little say on the day because the process is left to the judge.
17. What are some other advantages of mediation in contested wills cases?
Some other advantages:
- Mediation is less expensive and faster.
- Your case does not sit around waiting for a judge to hear it.
- The court process before a judge is very slow and witnesses are involved.
- At mediation there is no cross-examination for you to endure.
- At a hearing you have to go into the witness box and give evidence.
- There is no appeal after a mediation because you have agreed to the settlement. It was what you wanted. After a hearing before a judge, either party can appeal and then you have another long wait for the appeal process.
- At mediation, you have control of the way the dispute is settled. It is you and the other party who makes the decisions.