We all know the threat "I'll see you in court!", but there are alternatives to litigation for resolving a dispute.

What is the issue?

Are you in a legal dispute with someone? There's a good chance your dispute will be resolved through a mediation with the other side. We all know the threat "I'll see you in court". While it lacks the same force, in most cases it would be more realistic to say "I'll see you at mediation."

Getting a court to decide your case is definitely one way of resolving a dispute. However, the vast majority of litigation commenced in court will never reach a final hearing. Most cases will settle beforehand, with the parties coming up with their own solution to their dispute. Commonly, that will be a commercial solution, regardless of legal strengths and weaknesses.

Often, it's just too risky and costly to leave the final decision to a judge, magistrate or tribunal member.

Benefits of mediation?

This is where mediation comes in. In mediation, a mediator facilitates the parties to discuss their dispute and find a way of resolving it. It's certainly a lot cheaper than paying for fully contested legal proceedings to final trial. It's generally compulsory for the parties to have first attempted mediation before a trial can commence. While you may think of the trial as the main game, for many cases the mediation will be the place where the issues are fleshed out and resolved.

This means you need to go into a mediation well prepared. Here are some things you should consider before going into mediation:

Think about possible outcomes you could achieve at the mediation.
Put yourself in the shoes of the other side. What solutions of yours are they likely to find acceptable? What outcomes would be mutually beneficial?
Think beyond legal remedies. A court will decide a case on its legal merits, but often the parties will have commercial or personal considerations that are equally important (or perhaps more important), than who's right or wrong in the eyes of the law.
Ask yourself what is your 'best alternative to a negotiated agreement' (BATNA). This should be your course of action if there were to be no settlement at mediation. The stronger your BATNA, the more bargaining power you hold.
Have a realistic assessment of the other side's BATNA. The weaker their BATNA, the stronger your position. Conversely, if they have a strong BATNA (e.g. because they have a good legal case), your bargaining position is weaker.
Be prepared to argue your position by reference to objective standards that both sides respect. If you can demonstrate the fairness of your position, you are more likely to reach agreement.
Know your legal position. The most important of the objective standards you can appeal to is your legal position, because that's the standard that will apply if the mediation fails and the matter goes to court.
The outcome at mediation is in your own keeping. If there's no settlement at mediation, then the outcome passes out of your keeping and into the keeping of a judge, magistrate or tribunal member. You may or may not like their final decision at trial.

Any Tips

You don't need to wait until court action starts in order to mediate a dispute, though commencing litigation may be necessary to bring the other side to the table. It can also strengthen your bargaining position, as there's significantly more impetus to come to an agreement when the next step is a trial. Your lawyer will be able to advise you on what is the best strategy to adopt.
Try to settle on an outcome 'you can live with' rather than your optimum outcome.

How can Sharrock Pitman Legal help me?

We have extensive experience assisting customers to resolve their legal disputes through mediation. If you need advice on your legal dispute, please contact us and it would be our pleasure to assist you. We provide fixed prices and offer substantive free benefits to all customers who run a business. Click here for full details. Call Sharrock Pitman Legal today on 1300 205 506 or email us at sp@sharrockpitman.com.au.

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

Mitchell Zadow

Mitchell is the Managing Principal of our law practice.

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. For further information, contact Mitchell on his direct line (03) 8561 3318.

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What is the process for Mediation?

We all know the threat "I'll see you in court!", but there are alternatives to litigation for resolving a dispute.

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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Mediation or Court?

We all know the threat "I'll see you in court!", but there are alternatives to litigation for resolving a dispute.

What is the issue?

Benefits of mediation?

Any Tips