Are you looking to be prepared before your first mediation session? The following tips will ensure that you know what to expect from, and are well prepared for, your first mediation.

Familiarise yourself with the mediation process

Mediation is different from other resolution processes, such as arbitration or trial of a proceeding. Mediation involves the parties conducting confidential negotiations, with the assistance of a mediator, in an attempt to reach an agreed settlement of the dispute. The mediator does not make a decision about your case or dispute. Instead, the mediator's role is to facilitate the negotiations by:

focusing the parties on the issues in dispute
highlighting the strengths and weaknesses of each party's case
helping the parties to identify potential ways to resolve the dispute

Get yourself comfortable and relaxed

The litigation process can be stressful, and the mediation component is no different. Try to rest well the night before mediation. Mediation is less formal than a court trial, so wear clothes in which you feel comfortable. The mediation session may continue all day so consider what refreshments are available at or nearby the mediation venue. If necessary, bring your own food, drink, and snacks. People underestimate how much someone in a dispute will often give up to end long, draining negotiations, just because they are hungry or tired.

Mediation is often also an emotional experience. Try to anticipate how you might react to some of the things that are likely to be said during mediation, and prepare strategies to best manage your emotions in response. You are able to ask the mediator for breaks, should you become overwhelmed or upset at any stage.

Identify the issues and possible solutions

You will usually know the outcome that you wish to achieve prior to mediation. Taking a fixed position, however, reduces your chances of resolving the matter, as it restricts your ability to be creative and flexible in finding other possible ways to end the dispute that are acceptable to all parties. Before mediating you should:

Identify the issues involved in the disputeThis includes speculating as to what issues might be important to the other party, as well as what his or her preferred outcomes might be.
Determine what outcomes are possible. Be creative when thinking about ways to resolve the dispute. Even in a commercial dispute involving money or goods, there are often many ways in which the matter may be satisfactorily resolved. Consider also what each party realistically is and is not able to do it is of no use to agree to a resolution that is unworkable in practice.
BATNA/WATNA"BATNA" stands for best or the most advantageous alternative course of action a party can take if negotiations fail and agreement cannot be reached. On the other hand, "WATNA" stands for the worst alternative to a negotiated outcome or, put more simply, what is the worst that could happen and what might be the consequences if negotiations were to fail and agreement could not be reached?

And so, when it comes to mediation, always consider two scenarios if there is no settlement: both your best course of action as well as the worst that might happen to you. These two scenarios will help you to understand the importance of negotiating and settling the dispute on acceptable (rather than ideal) terms. Remember, the end goal is to settle any dispute on terms "you can live with" rather than on optimum terms.

Plan your communications

When preparing for mediation, it is important to plan your communications in advance. Think about how you want to present the issues which are important to you. Equally, consider which matters you may not wish to disclose to the other party at mediation. Whilst mediation is generally confidential, and the communications of the parties may not be used in any subsequent trial of the matter, that does not mean that the other party cannot gain an advantage from information that it obtains during mediation. Planning your communications involves weighing up what information should be disclosed in order to maximize your chances of satisfactorily resolving the matter, against giving away tactical advantages, particularly if the matter does not resolve at mediation.

Lawyer/support person

Often parties are permitted to have a lawyer attend mediation. The advantages of engaging a lawyer to attend mediation with you are that your lawyer can:

present the issues on your behalf
advise you regarding legal issues that may be raised during mediation
draft terms of settlement to protect your interests, should the matter resolve at mediation
make you feel more comfortable generally

Given that the other party may choose to have a lawyer present, you should consider whether you are comfortable attending and conducting mediation without the assistance of a lawyer.

If a lawyer is not permitted to attend your mediation, usually you will be allowed to bring a support person, provided that he or she agrees to be bound by the confidentiality of the mediation process. Whilst a support person generally does not speak on your behalf, he or she can be present to make you feel more comfortable, and can talk to you privately about matters arising during mediation.

These tips will help you to prepare generally for mediation. If you wish to engage a lawyer to attend with you at mediation, or if you would like to receive advice concerning particular issues in your dispute prior to mediation, please contact us on 1300 205 506.

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?

Are you looking to be prepared before your first mediation session? The following tips will ensure that you know what to expect from, and are well prepared for, your first mediation.

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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Preparing for your Mediation session

Are you looking to be prepared before your first mediation session? The following tips will ensure that you know what to expect from, and are well prepared for, your first mediation.

Familiarise yourself with the mediation process

Get yourself comfortable and relaxed

Identify the issues and possible solutions

Plan your communications