The death or incapacitation of a loved one is one of the most painful experiences in life. The grief can be overwhelming. Unfortunately, at this time, disputes often arise about the deceased’s estate and/or related family trusts. Emotions run high, and families often find themselves entrenched in legal battles that last for years, costing both money and relationships. Siblings who once shared holidays now communicate only through lawyers. The estate’s value dwindles as legal fees mount.  

If you or someone you know is, or may become, involved in such a dispute, mediation can help resolve the dispute without the cost, time, stress, uncertainty and (too often) ruined relationships, which generally accompany litigation.  

What is mediation? 

Mediation is an alternative to going to court, where a judge imposes a decision after a trial. Mediation is a confidential negotiation process where an independent and impartial person (the mediator) assists the parties to identify the issues in dispute, consider options, and negotiate an agreement to resolve the dispute. A mediator can assist the parties by asking questions, encouraging discussion, offering different perspectives and expressing issues in alternative ways. It is not the role of the mediator to make a decision for the parties. The parties decide whether or not to settle, and on what terms. If the parties reach a settlement, their lawyers will document the terms of settlement in the form of a legally binding agreement (terms of settlement) to be signed by the parties before the mediation ends. The outcome of mediation is only binding if and when the parties reach (and then sign) an agreement.  

Why choose mediation? 

Cost-effective 

Legal battles are notoriously expensive. Court fees, lawyers’ fees, and the drawn-out nature of litigation can deplete the very assets in dispute. Mediation, on the other hand, is much cheaper. The process is streamlined, reducing the time (and thus the costs) that lawyers and parties need to invest. This ensures that more of the estate remains intact, benefiting all parties involved. 

Efficient 

Court cases can drag on for years, with constant delays and adjournments. Mediation offers a quicker resolution. Instead of waiting for a court date, mediation sessions can be scheduled at the convenience of all parties involved, often resulting in a resolution within weeks or months, rather than years. 

Confidential and without prejudice 

Court proceedings are public, and airing family grievances in such a forum can be uncomfortable and damaging. Mediation, however, is a private process. Discussions and agreements remain confidential, protecting the privacy of the individuals and the estate in question. Anything said or disclosed in the mediation process is ‘without prejudice’ meaning that it cannot later be used against any party if legal proceedings are pursued. This gives the parties the freedom to genuinely try and resolve the dispute. 

Preservation of relationships 

Litigation is adversarial by nature. It pits family members against each other, often leading to irreparable rifts. Mediation fosters a collaborative environment where parties can communicate openly and work together to find a mutually acceptable solution. Beyond potentially resolving the dispute, this approach can preserve and even strengthen family relationships. 

Flexibility and control 

In court, the judge makes the final decision, often leaving one party (if not both parties) dissatisfied. Mediation provides parties more control over the outcome. The mediator facilitates the conversation, but the parties create their own agreement, tailored to their specific needs and circumstances. This flexibility can lead to more creative and satisfying solutions that a court might not be able to provide.  

Mental health 

The emotional toll of litigation is immense. The stress of a court battle can affect the mental health of those involved, leading to anxiety and depression. Mediation offers a less confrontational approach, reducing stress and allowing for a more emotionally balanced resolution. 

Final thoughts 

In a dispute over a deceased estate and/or family trust, mediation is often a superior option to fully contested litigation. Compared to litigation, mediation is quicker, less expensive, less risky, less formal, less adversarial, and confidential. Mediation offers a private, flexible, and controlled environment for resolving the dispute. At mediation, parties control the outcome, whereas at the end of a trial, the judge will impose his/her decision upon the parties. For these reasons, parties are often more satisfied with a negotiated outcome at mediation than a judge-imposed decision following a trial. In most contested litigation, mediation will be ordered by the court in any event. If you or someone you know is, or may become, involved in such a dispute, consider mediation.