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How does the mediation process work in will disputes?

Will disputes are often resolved before ever making it to court. Either by reaching an agreement among the other beneficiaries or through mediation, both parties can typically reach a settlement before the estate dispute ever gets in front of a judge. It is only in a minority of cases that the parties cannot come to an agreement and where court intervention is required. 

Let’s explore how the mediation process works, and why reaching an agreement at mediation could be more beneficial than taking the case to court.

Mediation in a will dispute

In an estate dispute, involved parties are defined as anyone named in the will. Contesting a will essentially means that you are claiming the will is either invalid or that you are entitled to part of the estate that you have not been awarded. In some cases, just speaking with the other beneficiaries will resolve the issue. However, there are other instances where estate mediation is necessary. 

Mediation brings together the key parties involved in a will dispute to discuss potential solutions. These sessions are usually attended by the executors of the estate and their legal representation, as well as the individuals and lawyers contesting the will.

An impartial professional mediator will also attend to guide the discussions, prevent arguments and help the parties reach an agreement where everyone is satisfied. Mediators do not provide legal advice and can’t authorise a settlement; their main function is to oversee the proceedings and prevent arguments.

Successful mediation can, however, facilitate an organised structure for discussion so that the parties can come to an agreement without needing to begin legal proceedings.

There are instances where caucus, or private mediation meetings between the mediator and half of the dispute, will speak separately. This is a great alternative to joining the two parties in a conversation if the discussions are generally unproductive. Mediation can help in the bargaining phase of the proceedings after both parties have presented their needs and differences. 

How is mediation organised?

Before mediation begins, the mediator will consider both sides of the dispute and put together a plan that best suits the situation. 

The time and place is agreed upon by both parties in advance. When the proceedings begin, the mediator will likely go over a summary of the process ahead, followed by a discussion on the background of the case. After the opening discussion, the rest of the time is flexible. 

Parties could meet:

  • All together in a face-to-face discussion.
  • In a caucus format.
  • Just the lawyers to discuss their client’s needs.
  • In a video conference. 

Possible outcomes of mediation

A mediation service is simply a middle ground between unstructured argument and court intervention. 

Outcomes can include the parties coming to a full, partial or no agreement at all. If all beneficiaries can agree to the wills contents and validity, then the terms of that agreement will be recorded and signed. The mediator will not notify the judge of what happened during the mediation, only that the case has reached a settlement. 

After the agreement is finalised, the two parties will formally notify the court that the case can now be closed. 

If discussions during mediation are not resolved, the mediator will notify the judge that the matter is still ongoing. From there, the parties will need to decide on their arguments and how to prepare for trial. Plaintiffs and defendants can also agree to re-enter mediation at any time during a court hearing.

Preparation for estate mediation

To improve your time spent in mediation, it’s best to prepare for it. Consider what exactly is being argued and what you’ll need to reach a resolution with the other beneficiaries. You can discuss these details with your lawyer and make a plan for how you will communicate these needs. 

Before beginning mediation, you will likely know most of the other party’s needs and why they may not have already agreed to a settlement. Consider these desires and how these might be accommodated with a different offer that also fits your goals. 

Your opening statements will help you lay out the foundations of the mediation. Making a plan with your estate lawyer can help you communicate most effectively during the mediation service. 

Keep in mind that coming to a resolution during mediation is both parties’ last chance to avoid going to court. Consider whether court intervention would create a favourable outcome. It may be helpful to also look at the costs of court fees. 

Finally, the longer the dispute carries on, the more possible damage you could make in the family relationship. While you and your lawyer will work hard to get you the benefits you legally are entitled to, making changes to the will can affect how much or how little other beneficiaries receive as well. The courts will consider your financial situation and that of the rest of the beneficiaries. You should also consider how much of the estate you need or are actually entitled to compared to the needs of others on the will. 

Benefits of mediation

Mediation offers many benefits over going to trial with a judge involved. Not only is the setting more flexible, but you can save time and money as well. Court proceedings includes writing affidavits and waiting for your trial date, but legal fees and the potential for an unfavourable outcome based on the judge’s ruling. When parties have the opportunity to discuss their needs and agree on a compromise, they can both find satisfaction in making that decision rather than waiting for a judge to rule for them. 

The unsuccessful party at the end of a trial is also responsible for all legal fees which can greatly hurt your relationship with the other company.

Mediation is also much less formal than court. Both parties have the opportunity to set up the process in a way that is best for their needs, such as telecommunications or just having your legal representatives speak on your behalf. 

Confidentiality is another huge benefit to mediation because the judge will never know the details of the trial or what happened while the process was taking place. Additionally, if a resolution is not met, anything that happened during mediation cannot be used during the trial. 

Finally, if anything changes in the future, the outcome of mediation can be altered to meet those needs. While the agreements are legally binding, parties can make modifications if they all agree on the changes. 

Gerard Malouf & Partners are your go-to estate dispute lawyers

When it comes to will disputes — whether contesting or challenging a will — Gerard Malouf & Partners family dispute lawyers can help you every step of the way. 

We recommend that you get in touch with a law professional as soon as you notice a concern about the will. Gerard Malouf & Partners offers a no-obligation consultation when you first meet with us to discuss the details of your case and formulate a plan. This can give you all the confidence you need to move forward with proceedings and defend your case. We can represent you while in mediation or speak on your behalf depending on the needs of the case. 

Reaching a successful mediation and family dispute resolution is our top priority. To learn more about our will dispute experience, or to prepare for your mediation, download our guide now.

About Us
Gerard Malouf & Partners have provided friendly, experienced legal advice to communities across Australia for over 35 years. Our Personal Injury Lawyers have taken on ten’s of thousands of cases and we are proud to have won billions of dollars for our clients.
Meet the diverse and dynamic team of compensation lawyers and supporting staff that have made this all happen below. Our multi-lingual team can discuss your claims in Arabic, Assyrian, Turkish, Greek, Italian, French, Serbian, Croatian, Armenian, Mandarin, Hindi, Punjabi or Malayalam.
Meet the diverse and dynamic team of compensation lawyers and supporting staff that have made this all happen below. Our multi-lingual team can discuss your claims in Arabic, Assyrian, Turkish, Greek, Italian, French, Serbian, Croatian, Armenian, Mandarin, Hindi, Punjabi or Malayalam.

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