Mediation is defined by the National Alternative Dispute Resolution Advisory Counsel as:
A process in which the participants to a dispute, with the assistance of a Dispute Resolution Practitioner (the Mediator), identify the disputed issues, develop options, consider alternatives, and endeavour to reach an agreement. The mediator has no advisory or determinative role in regard to the content of the dispute or the outcome of the resolution, but may advise on or determine the process of mediation whereby a resolution is attempted. Mediation may be undertaken voluntarily, under a court order, or to an existing contractual agreement. 1
Essentially, mediation is an informal dispute resolution process, whereby the parties to a dispute come together with an independent third party (a mediator), to identify issues in dispute and try to resolve them.
In the area of estate disputes, mediation is a compulsory step during the course of a claim. The parties are required to attend mediation and attempt to resolve the matter prior to the matter being listed for hearing.
Advantages of Mediation
Despite being a compulsory step in the estate dispute process, there are many advantages to mediation. Some of those advantages include:
- Narrowing the real issues that are in dispute.
- The parties come together and hear each other’s side of the dispute.
- The information provided at mediation is confidential.
- It provides the parties an opportunity to discuss potential ways to resolve a claim.
- It can assist with preserving relationships.
- Importantly, if the matter is resolved at mediation, it saves the parties incurring further legal costs.
Mediation is most successful when all parties involved have a genuine approach to compromise and resolving a claim.
With COVID-19 disrupting people’s lives and disrupting the Court system, it is now more important than ever for parties to approach mediation with an open mind and a genuine attitude to resolving a claim. The impact of COVID-19 means parties could be waiting 12-18 months (or even longer), before a matter is heard in Court.
The longer a matter is ongoing, the more stress it places on the parties involved and the more legal costs are incurred.
The Mediation Process
The mediation process can differ a little between states. Generally, what happens leading up to mediation is, the parties’ legal representatives will put together a position paper. The position paper is a document that briefly outlines their case and the legal representatives will provide this position paper to each other prior to mediation.
What happens on the day of mediation?
- You will meet with your legal team prior to the mediation starting. Your legal team usually consists of your lawyer and barrister. In very small estates, a barrister may not be able to be engaged.
- The mediation will start with all parties in a large room sitting around a table. The mediator will be sitting at one end.
- The mediator will commence the mediation by explaining what mediation is, the importance of it, what their role is and the rules applicable to the mediation.
- The barrister (or lawyer) for the applicant/plaintiff will outline what their case is.
- The barrister (or lawyer) for the respondent/defendant will then have an opportunity to outline their case.
- The mediator will then thank the parties for their contribution and arrange for the parties to have separate meeting rooms. Each party and their legal team have their own room to discuss the matter further in a private setting.
- One of the parties will commence with an opening offer and this would usually be the applicant/plaintiff. The offer is then communicated to the other side.
- If the other side reject that offer, they can put an offer forward.
- Offers essentially go back and forth for the duration of the mediation and hopefully a resolution is achieved.
- If a resolution cannot be achieved, the mediation will end.
While mediation is an informal dispute resolution process, it can still be stressful for the parties. As a party to a mediation, you should consider taking a support person with you. If you do not have someone you can take with you, try to have a family member or friend available that you contact by telephone throughout the day.
Little Estate Lawyers is a boutique Wills and Estates law firm. We act in a range of estate disputes.
Little Estate Mediation is a Wills and Estates mediation service.
Danielle Little is the owner of Little Estate Lawyers and Little Estate Mediation. Danielle is a recognised Trusts and Estates Practitioner and Nationally Accredited Mediator.
* The above information is a general guide only and does not represent legal advice. 1 National Alternative Dispute Resolution Advisory Council, Glossary of ADR terms.