When a person with a valid will passes away, their estate is usually settled by their executor in accordance with the instructions set out in their will. However, sometimes disagreements can arise between beneficiaries, executors, and eligible persons which can lead to a will dispute.
If you find yourself in this situation, it’s important to know that there are options available to help resolve the dispute, such as mediation.
Mediation is generally seen as a voluntary process. However, in NSW, unless there is a special reason not to, the Supreme Court will refer parties to mediation before proceeding to a hearing. As such, all parties to a will dispute should be familiar with the mediation process and what it entails.
In this blog post, we’ll take a look at will disputes and mediation in NSW, so you can decide what’s best for your situation and understand the possible processes ahead of you.
What Is Mediation?
Mediation is a popular form of alternative dispute resolution that utilises the skills of a mediator.
A mediator is an independent third party, trained to resolve disputes, identify sources of stress, and promote mutual understanding between all parties involved in a disagreement.
The mediation process enables the parties to a dispute to come together and work towards finding an agreement that is satisfactory for all involved. The process offers an opportunity for those in conflict to come up with solutions on their own, without the intervention of a judge.
Rules of mediation
It is important for a mediation to have structure, and that the parties understand the behaviour that is expected of them throughout the process.
Mediators are trained to foster a productive, respectful, and trusting atmosphere for an effective session. Prior to mediation, parties are generally provided with a mediation agreement that sets out the rules and expectations of the meeting.
Generally, a mediation agreement will confirm:
The approach to costs of the mediation
The mediator is an impartial third party, and they do not to act as an arbitrator, advisor or decision maker
The purpose of the mediation
For a mediation to be successful, it is vital that each party accept and respect these guidelines. As such, most mediators will require the agreement to be signed, before the mediation session can begin.
Advantages of mediation
Mediation is often a strong choice for anyone seeking to quickly and amicably resolve a will dispute. Some of the advantages to mediation are:
Mediation can provide an opportunity for the parties involved to express their honest opinions without being hindered by emotions that sometimes bubble to the surface when disagreeing.
Mediation fees tend to be much lower when compared to fees associated with protracted court action.
Unlike published court decisions, mediation is highly confidential and private.
Resolution of a dispute via mediation can be much faster and less stressful on the parties involved, than attending a final court hearing.
Mediation encourages compromise, and reaching resolution that may be seen as mutually beneficial to all parties involved.
The process of mediation for contesting a will
Mediation can be arranged privately by the parties (private mediation) or ordered by the court (court annexed mediation).
At the end of the day, the process is fairly universal, regardless of how you get there.
Mediation is held in a mutually agreed, ‘neutral’ environment. Sessions can be held anywhere from a café, to the virtual world of Zoom, or to a more formal conference room setting.
Generally, the process is as follows:
The mediator explains the mediation process and its purpose to the parties
Each party, or their legal representative, provides an opening statement, explaining their position
The parties then separate and confer with their legal representatives in private
Suggestions and offers of settlement are passed between the parties, utilising the mediator as an impartial third party. This continues until one of the following happens:
The parties reach terms of settlement
The parties decide to terminate the mediation session
If the parties are able to resolve the matter, they will sign a written agreement setting out the terms of same
If the parties are unable to resolve the matter, it will proceed to the next step in the litigation process (generally a hearing)
Who attends mediation for wills disputes?
Generally, the people in attendance at a mediation will be:
The executor of the estate
The person contesting the estate
In circumstances where there is more than one person contesting the estate, it is common for all claims to be heard at the same mediation.
When it comes to will disputes, mediation has emerged as an effective alternative to litigation.
It is typically less costly and time-consuming.
The process itself is quite simple and straightforward, with an independent mediator facilitating communication between the disputing parties in order to gain a meaningful resolution.
If you’re facing a will dispute and are unsure of what your best course of action may be, contact Turnbull Hill Lawyers. We are a trusted legal team with a wealth of experience in will disputes. We understand how difficult this issue may be for you and your family, so call us today to discuss your options and find out how we can help.