Mediation in Estate Disputes: What to Expect
If an eligible person believes that they didn’t receive adequate provision for proper maintenance and support, they may decide to contest the testator’s will.
In such circumstances, the claimant may be deterred to take action, with the prospect of a lengthy, expensive court case fostering doubts as to whether they ought to instigate an estate dispute. However, in many instances, there’s a viable alternative through which the claimant and defendant can reach an agreement – without the need for a trial.
At Hentys, the vast majority of estate dispute cases with which we’ve been involved are settled out of court, through a process known as mediation.
What Does Mediation Involve?
In Victoria, mediation is a well-known Alternative Dispute Resolution option for those looking to avoid the costs and additional stress of going to court.
Mediation is a court-appointed, confidential meeting between parties at which a discussion regarding the case at hand takes place. Typically, this meeting is held at a neutral location determined by those involved, such as a conference room, which gives them the opportunity to meet face-to-face.
During mediation, you aren’t required to stand up or actively participate in discussions if you don’t wish to do so. As an experienced professional in the field, your estate lawyer can fully represent you and your interests. That being said, if the claimant or defendant would like to make a contribution to the conversation, they are capable of doing so.
Ideally, at the conclusion of mediation, the claimant and the defendant will resolve the matter and reach a settlement that is satisfactory for both individuals. In such instances, the agreement’s details will be formally documented and, subsequently, signed by each party.
With this in mind, for such an agreement to be made, there will typically need to be a certain degree of compromise from all of those involved. If both individuals enter into discussions unwilling to negotiate and, ultimately, cooperate with the mediation process, the case will likely need to be heard in court.
Who Attends Mediation?
At mediation, there are numerous people who are usually present, each with a different interest and/or role in the proceedings.
This includes the claimant who’s contesting a will or challenging the will, as well as the executor or administrator of the estate, who’s defending the will. Each of these individuals will be accompanied by their estate lawyer; a qualified will dispute professional who represents their interests.
There is, of course, also a suitably qualified neutral third party, such as a Registrar of the Court or private mediator, in attendance. The mediator will assist the claimant and defendant in navigating what is often a difficult conversation, acting as an unbiased and completely independent third party.
It is, however, important to note that, while the mediator can guide discussions, they don’t have any authority or involvement in the final settlement decision. In addition to this, the appointed mediator is not in the position to give legal advice to any of those involved. Rather, as an impartial party, they ensure the appropriate process is followed during mediation proceedings, all the while actively encouraging the claimant and defendant to consider alternative viewpoints. In essence, they’re there to help participants reach a mutually beneficial agreement, as opposed to interfering with or giving their opinion on the technicalities of the case itself.
The Mediation Process
Mediation typically begins with an opening statement from each party’s legal representative. This is a short declaration, which informs the mediator and all of those present of their client’s position on the case.
Following this, the mediator will provide an explanation as to why mediation is being held at this time. They will then detail any costs that both parties will incur should the meeting be inconclusive and, thus, heard in court.
The discussion will then commence, with the mediator acting as an impartial party to guide the conversation. When appropriate, the mediator will prompt both parties to enter separate rooms, where they each propose offers of settlements. At this point, these statements will be exchanged through the mediator, until an agreement is reached or the claimant or defendant terminates the mediation.
Depending on the outcome decided upon between involved parties, the case will then either be settled in a formal agreement or, alternatively, relisted to be heard before the Court.
Why Mediation is often Preferable
When it comes to estate disputes, there are numerous reasons why those involved will often perceive the prospect of reaching a resolution during mediation as far more desirable than pursuing the case further in court.
Time & Financial Costs
A key reason that many claimants and defendants look to settle their case during mediation is that, in many instances, a dispute that’s taken to court ends up being particularly lengthy and costly. Legal costs will, of course, vary on a case-to-case basis, and the amount for which you’re liable will be dependent on the case’s outcome.
If you’re the executor or administrator of the estate and, consequently, you’re responsible for defending the will, it’s unlikely that you’ll be personally liable for any costs incurred. Instead, once the case has been settled, legal fees and other associated costs may be paid from the estate.
While, typically, this allows for the executor to defend the estate without putting their personal finances at risk, it can also significantly diminish an estate’s value, depending on the extent of the case’s costs. In some cases, if a case goes on for a particularly long amount of time or if it is a small estate, the total costs may even exceed the value of the estate.
There is, however, typically a greater element of risk involved in a claimant pursuing a case against an estate. When it comes to legal fees, the exact amount for which they’re personally liable will vary depending on the outcome of their case.
For instance, if the claimant’s case is successful when taken to court, their relevant legal costs will likely be paid from the estate. However, even if their claim is successful, depending on the Court’s decision, an individual may only have their legal fees partially funded by the estate. In such cases, they will, of course, be personally liable for paying the remaining expenses.
Alternatively, their case may not be proven legally valid in court and, thus, they will be required to cover all of their related fees themselves.
All of this considered, mediation can help both claimants and defendants avoid the exuberant costs, be it time or monetary, that can come with a long, complex court case.
Strain on Relationships
In what can already be a distressing time, estate disputes, especially those that are dragged out over months or years, can simply amplify emotions.
Through mediation, once a settlement is reached, the claimant and defendant are given a sense of finality. This can improve long-term family relations, helping individuals avoid the inevitable relationship strain that often comes hand in hand with a lengthy court case.
In addition to this, to reach a mutually beneficial outcome, those involved are required to cooperate and, thus, hear each other out; this can also help avoid bitterness and conflict between parties down the line.
If the claimant and defendant successfully reach an agreement during mediation, the terms discussed are detailed in a non-appealable document, which is signed by both individuals. This means that, rather than having to pursue the case further in court, all of those involved can move on with their lives and mourn their loved one, without having to endure the emotional strain of a costly court case.
How an Estate Lawyer Can be of Assistance During Mediation
Estate disputes can be particularly stressful for those involved, with both parties already grieving the loss of a loved one. In addition to this, further pressure can be placed on the relationships of those who were closest to the deceased.
An estate lawyer is experienced in resolving disputes and, thus, can be of incredible assistance when it comes to alleviating some of the inherent emotional strain of such cases.
For an individual who doesn’t have prior professional experience in will disputes and, ultimately, a strong knowledge of estate law, mediation may be a daunting process. With extensive experience in the field, your estate lawyer can provide invaluable guidance, advice and support when needed. You can rest assured that they will act in and represent your best interests, keeping you well informed, involved and prepared during each stage of your estate dispute.
Providing you with explanations in plain English, an estate lawyer can also honestly address any queries that may arise as mediation proceedings progress. They will also ensure that you’re aware of your options every step of the way, so you can make well-thought-out decisions, which are in your best interest.
With an expert inheritance lawyer by your side, you’ll be equipped with the expertise and assistance to build a legally strong case, so that you can achieve a satisfactory outcome.
Interested in Contesting or Challenging a Will?
For more information about mediation or if this article has brought up any queries, please don’t hesitate to get in touch with our estate lawyers at Hentys. With more than 25 years of experience handling will disputes and 95% of our cases settled out of court, we’re dedicated to helping our clients reach the settlement they’re entitled to.
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