Employment mediation is a process of mediation for disputes between employees and employers.

What is the difference between Mediation and Employment Mediation?

Mediation is a voluntary, confidential process whereby two or more parties agree to sit down and attempt to resolve their differences in an informal setting. There is no obligation to reach an agreement and sometimes, mediation can take multiple sessions to reach an agreement which may have never been achieved in a Court setting. Employment mediation is no different!

Why should you mediate your dispute?

Mediation has various positive benefits in comparison to instigating formal court or tribunal proceedings against your employer. These include:

A cost-effective and informal process whereby you can speak openly about your concerns and any issues
Customised settlement agreements which can be tailored to your unique situation
The potential to preserve the relationship between parties within the confines of a confidential setting as opposed to arguing in open court, and
The ability for a qualified mediator to work with you to resolve your dispute.

Please refer to our previous article Mediation or Court for a more in depth, comprehensive list of reasons to consider mediation if it is available to you.

What types of issues are handled by Employment Mediation?

There are still cases which will ultimately be decided in a formal Court setting. However, cases such as bullying, harassment or even the denial of certain fundamental workplace rights (such as conditions and pay) may be better dealt with confidentially through a tailored mediation process.

How does the process of mediation begin in Australia?

The terms ‘employee mediation program’ and ‘formal mediation requests’ are highly Americanised and not commonly used in Australia. Instead, the first step in many mediations in Australia is to raise your complaint in writing with your HR manager. This will enable your complaint to be put on the record and it officially informs all parties that there is a problem within the workplace.

Once HR are aware of the matter, if it is minor, they may be able to deal with it in-house. However, if the parties are highly emotional or one party does not believe that they will be treated fairly if it is dealt with in-house, then this is when engaging an external mediator may be appropriate. If both parties then subsequently consent to mediation, a date and time can be agreed upon and organised.

What type of mediator should I engage for my dispute?

It is commonly thought that all mediators offer the same service. This could not be further from the truth. Mediation services can range from purely facilitative mediation, whereby the mediator will never offer a legal opinion, to an evaluative mediator who freely offers opinions on your legal matter. Both parties are required to consent to whichever model is ultimately utilised.

How we can assist

If you have any queries or require assistance in relation to your employment issues, please feel free to contact us on 1300 205 506 for further information or alternatively fill in the form below.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by a member of our Legal Team

For further information contact

Samuel Ellemor

Samuel Ellemor is a Senior Associate and Accredited Specialist in Workplace Relations Law, with expertise assisting individuals, businesses and not-for-profit organisations across abroad range of employment, commercial and not-for-profit matters. Samuel can be contacted directly on (03) 8561 3316.

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What is the process for Mediation?

Employment mediation is a process of mediation for disputes between employees and employers.

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Supreme Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be published on the Supreme Court website for at least 14 days prior to any application being lodged.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate or Letters of Administration. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.

You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE:

(03) 8561 3318

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Employment Mediation

Employment mediation is a process of mediation for disputes between employees and employers.

What is the difference between Mediation and Employment Mediation?

Why should you mediate your dispute?

What types of issues are handled by Employment Mediation?

How does the process of mediation begin in Australia?

What type of mediator should I engage for my dispute?