What is mediation in the context of a contested Will matter in NSW?
Mediation is frequently used when contesting a Will or challenging a Will as an alternative to going to Court. It is a confidential meeting that takes place between both parties, with a lawyer (or suitably qualified professional) acting as a ‘Mediator’. Mediation is the most common form of Alternative Dispute Resolution (ADR). Mediation is frequently used to reconcile Will disputes, without incurring all the costs involved with a Court hearing.
Not only does mediation offer a far more cost-effective way of resolving disputes, but it also acts as a buffer between the two parties that gives them the chance to ensure the relationship isn’t irretrievably damaged. It’s about trying to come to an agreement that makes both parties happy, instead of proceeding with a lengthy Court battle that almost always ends in a breakdown of the relationship.
The goal of mediation is to get both parties to agree on a settlement, right there on the spot, during the meeting. Once a settlement has been mutually agreed upon, the focus turns to clearly documenting the terms and signing a document containing them.
1. Who attends mediation?
The Executor or Administrator of the Estate will attend the meeting with their lawyer, who represents their best interests. The individual or individuals who are contesting the Will or challenging the Will will also attend with their lawyer, who represents their best interests. Finally, a ‘Mediator’ will be present who will act as a neutral third party (read about their role below).
If a party is not a natural person (a company), a properly authorised representative from that entity, with written authority to settle the matter, will be required to be present.
2. Where and how is mediation held?
Mediation is most commonly conducted as a ‘face-to-face’ style meeting. However, with advances in technology (like Xpedimeet), it is possible to conduct a mediation using video conferencing tools.
Mediation is typically held in a ‘conference room’ style environment, as opposed to a formal Court room.
If both sides are meeting in person, it is generally up to the parties to agree on a location that is easily accessible for everyone involved. The location is typically neutral ground (i.e. in the nearest major city).
In terms of seating within the room itself, again it’s up to the parties to decide where they would like to sit. Alternatively, if the facilities allow for it, both parties can choose to sit in separate rooms, with their lawyers going back and forth between those rooms and the main room containing the Mediator. However, this type of seating arrangement does tend to delay proceedings, resulting in an increase in fees to have both your lawyer and Mediator in attendance for a longer period of time.
3. What is the role of the Mediator?
A professional Mediator is engaged by both parties to act as a completely independent third party. It is their role to guide the discussion, ensure a proper process is followed and monitor proceedings. Throughout the mediation they will remain impartial and do not have the authority to make any decisions regarding the settlement. The Mediator will encourage both sides to consider different viewpoints in the hopes of helping them reach a mutually agreeable solution. The Mediator also acts as a time keeper and will assist with keeping proceedings on track by stopping people when they get side-tracked, or in the event that an argument escalates out of control.
Finally, it is important to note that it is not the Mediator’s role to give legal advice during the mediation. Any advice given will be provided by the lawyers who represent each side.
4. Why consider mediation? What are the benefits?
- Early resolution (it’s fast)
- Less costs to both parties (it’s cost-effective)
- The settlement doesn’t have to conform to legal precedent or any rules of law (it’s very flexible)
- Complete confidentiality! Anything that is said during a mediation, or produced as evidence during a mediation, cannot be used in a later Court hearing (it’s private)
- Less stress and not so emotionally draining (it’s easier)
- You won’t have to worry about following complex legal procedures or listening to confusing legal jargon (it’s informal)
- Proven success rate with 90% of cases settling before they reach Court in NSW (it actually works)
- If a settlement (agreement) cannot be reached during mediation and the matter proceeds to a Court hearing, it may still have enabled the parties to clarify and narrow down the key issues, which can lead to a shortened hearing (it’s beneficial in the long-term)
- The costs for mediation are clear from the start, as opposed to Court hearings that have the potential to be quite lengthy and costly, with no set end point that can be determined from the start. Mediations are conducted at a fixed cost and have a fixed duration (it’s clear and manageable)
- You don’t have to wait idly for a Judge to hear your case, instead you can proceed whenever you are ready (it fits in with your life)
5. If an agreement is reached, how does mediation end?
Once both parties have reached a mutually agreeable solution, the solution will be written down and signed. This acts as a binding agreement between both sides and functions as a resolution to the dispute.
6. How can Turnbull Hill Lawyers assist you in mediation?
- We will initially advise you if your case is suitable for mediation, as it is not appropriate in every matter
- We will describe the mediation process to you and explain everything in plain English
- We handle all the communication with the other party, on your behalf
- We negotiate with the other party, both in the lead up to the mediation and during it
- We will prepare your matter for mediation
- We attend the mediation with you in order to provide you with correct and appropriate legal advice throughout the duration of the mediation
- We assist you in drafting up a settlement agreement
- If required to do so, we will obtain the appropriate Court order to put an end to any Court proceedings
7. What are the different types of Mediation?
A registrar or other officer of the Court is appointed as the Mediator. Parties do not get to select which registrar will mediate their dispute. The mediation will appear in a public Court list; however, the actual mediation session is closed to the public. There is no charge for the mediator and for the use of the assigned conference room. A Court-Annexed Mediation takes place in the nearest major city’s CBD. Because it is so popular and cost-effective, this type of mediation has a 4-6 week waiting period.
A mediation that is organised without the involvement of the Court. An independent private Mediator is selected, as well as a suitable conference room. Charges will apply for both the Mediator and the room. Additional fees may also include a commission or registration fee from a mediation agency and fees imposed by the Mediator for their preparation time. In most cases, both parties pay an equal proportion of the costs associated with private mediation, although other arrangements can be agreed upon by the parties or ordered by the Court. The benefits of private mediation include:
- Being able to choose your own Mediator
- Being able to choose your own location
- Being able to book a mediation quickly, without a waiting period