Importance of Mediation in Will Contesting
Will contesting is a process of challenging an existing will that does not reflect the intent of the testator (the deceased and author of the will) or is not valid. Evaluating the case and organising negotiation is the first step in a will contesting case. However, if these initial negotiations don’t work out, mediation is the best option before going to court.
Mediation is the best way to resolve a dispute. A good law firm will attempt to make all legal proceedings as simple and cost effective as possible. 90% of cases do not need to go to court and settled in the phase of the proceedings.
Who attends a Mediation session?
Both parties are required to attend mediation with their lawyers present. A Mediator (often a lawyer or other suitable person) is present to preside over the discussion and act as a neutral third party.
What is involved in the Mediation process?
Mediation is often held in a formal environment, such as a conference room, but not in a courtroom. It is up to both parties to decide on a meeting place, at a location that is considered neutral ground.
The procedure can be held in front of a Registrar of the Court or by a private mediator. Either way, the proceedings start with both parties’ legal representatives preparing a short opening statement explaining their respective positions.
The Mediator explains the point of the proceedings to both parties and goes through the costs if the hearing was to progress to Court. The Mediator typically makes a point of encouraging both parties to come to an arrangement on the day to avoid the stress and costs associated with Court proceedings.
A professional mediator may be engaged as an independent third party. They are present during the discussion but do not take active involvement by dictating the terms of the conversation. Mediators must remain impartial and have no authority over the final decision. A Mediator’s primary role is to encourage different views and help facilitate a mutually beneficial outcome for both parties.
Once the mediator has made their statement, parties are moved into two separate rooms, and settlement offers are exchanged between the mediator until the matter is resolved or the mediation is terminated.
Should a solution be reached, the settlement is written down, signed and witnessed as a binding agreement between both parties. If this is the outcome, settlement monies are paid out and proceedings are resolved.
If the solution is not reached, then either party may relist their matter before the Court to allocate a hearing date for the proceedings.
Why is Mediation as popular as it is?
Families and friendships can be torn apart by poor legal proceedings. Court can be a very stressful and emotional process that can cause major, sometimes irreconcilable, rifts between family members.
Below are some of the reasons that many parties prefer mediation over directly fighting out proceedings in court.
Mediation is a safe, controlled environment where the parties have more control over the proceedings and defining a mutually beneficial outcome.
Compared to litigation in Court, mediation is far more affordable option. By signing a non-appealable settlement agreement it can result in faster and cheaper outcome for both parties.
Everything discussed within the confines of mediation is confidential. All discussion during litigation proceedings, however, is put on public record.
4. Win-win solution
In a mediation situation, there are compromises to be made on both sides. Often there is no ‘winner’. Each party makes concessions for a win-win, or for pessimist lose-lose, solution.
5. Maintain relations
Contesting a will can put great strain on relationships, particularly if the proceedings involve relatives disputing a deceased family member. Mediation can help avoid burning bridges.
In summary, mediation is best option for most parties seeking to dispute an existing will. Often executors will be willing to make a settlement if the case is fair and the demands don’t put the estate in jeopardy. This is certainly a better option than taking the proceedings to Court.
For more information on Contesting a Will, try reading this blog to find out more. If you are in Melbourne and interested in Contesting a Will visit the www.willcontesting.com.au website to find out more about Hentys Lawyers and their high quality no win no fee estate litigation services.