How does the mediation process work in will disputes?

Published 12 Apr 2018

Author: David Cossalter

Many people have preconceptions of how will disputes unfold, but the reality is often very different from people's assumptions.

For example, most will contestations don't end up in court. The majority of claims are resolved either through early settlements or mediation sessions. Only a minority of cases occur where the parties are unable to come to an agreement and court intervention is required.

Here is how the mediation process in NSW works, including some of the benefits you can experience from settling a dispute in this manner.

What is mediation?

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.

How is mediation organised?

The parties involved must agree a venue and time that is agreeable to everyone. Mediation can be held in a physical location - such as a conference room - or via video conferencing software.

Unlike a court hearing, which has specific legal processes, mediation has significant flexibility in how they are arranged. The parties can be face to face in the same room, in separate rooms communicating through lawyers, or a number of other different set-ups depending on personal preferences.

What happens after mediation?

If an agreement is reached, the terms are written down and signed, whereby the settlement becomes legally binding. However, a court hearing may follow mediation when the parties still can't see eye to eye.

Plaintiffs and defendants can also agree to re-enter mediation at any time during a court hearing.

What are the benefits of mediation?

Mediation won't work for all disputes, but it has specific benefits over a court hearing.

  • Quick and cost effective: Court hearings can be time-consuming, which increases legal fees and reduces the size of the estate available for distribution.
  • Privacy: Any issues raised in mediation are kept private, while the result of a court hearing is publicly available.
  • Narrows down key issues: Even if a court hearing is eventually required, mediation can help to identify the main areas of dispute.
  • Less conflict: Court hearings can lead to arguments between friends and family members. Mediation provides a mutual agreement that can help all parties put the matter behind them as quickly as possible.

If you would like to discuss mediation or any other legal processes regarding a will dispute, please contact Gerard Malouf & Partners Will Dispute Lawyers.

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