Mediation is an alternative dispute resolution process whereby the parties seek to resolve disputes by reaching a mutually-agreeable settlement, and thus avoiding litigation through the courts.

Mediation is a flexible and alternative dispute resolution process where the parties seek to resolve disputes, with the help of a mediator. The mediator's role, as a neutral third party, is to provide a safe platform for mediation to take place and to guide the parties towards a mutually-agreeable settlement. The mediator will carry messages—offers, counter offers, questions, demands, and proposals to the parties.

The mediator will also encourage both sides to consider options and alternatives to resolve the matter. This environment is designed to encourage parties to raise their concerns and choose to make decisions or not. In doing this, the mediator is assisting the parties to identify and narrow down the issues in dispute, clearly understand each other's position and move closer to resolution. The parties therefore can exercise control over the outcome of the mediation process. This differs from the process of going to court, for example, where a judge makes the final decisions and both parties must then follow this decision, whether it is suitable for them or not.

Here is a snapshot of the stages involved during the mediation process:

Opening Statement

Typically, a mediation will commence with a joint session involving all parties and the mediator present. This joint session is used to set the ground rules and an agenda. The mediator will explain how the mediation will take place and will inform the parties that legal advice cannot be offered, that one particular party cannot be sided with nor can any decision-making be influenced by the mediator. The opening statement during the introductory remarks will set out the ground rules for the mediation. These ground rules are what help the mediation move along smoothly.

Statement by the Parties

After the opening statement, the mediator will give each side the opportunity to present their version of events in the lead up to the dispute. If the parties are represented by lawyers, it is the lawyer who will make the initial statement. The rationale behind the statement of the problem is to provide the opportunity for the parties to fully share their point of view and generate a range of options for discussion.

Information Gathering

At this juncture, the parties will usually be separated into different rooms. The mediator will speak with one party at a time by shuttling back and forth throughout the course of the mediation. The mediator will ask pose open-ended questions to the parties to get to the emotional undercurrents. The mediator may repeat back key ideas to the parties and will summarise often. This process enables the mediator to build rapport between the parties, especially when a facilitative style is engaged.

Clarifying Interests and Problem Identification

The mediator will attempt to find mutually acceptable outcomes and help the parties make arrangements for the future. The mediator will attempt to determine which issues are going to be able to be resolved or those that will reach agreement first.

By clarifying the interests and areas of disagreement, the parties can brainstorm a number of different options that extend past what they were initially considering. Therefore, mediation can open up more creative options for resolution, with the aim of reaching an agreement that both parties can live with.

Reaching an Agreement

Once the parties are committed to achieving a resolution, the mediator will explore potential solutions. This can lead to a final agreement, which diffuses the conflict and provides a new basis for future relations.

How can Sharrock Pitman Legal help?

If you require help with attending a mediation or you require a mediator to appear on your behalf, we have legal practitioners who specialise in and can assist in alternative dispute resolution and mediation appearances at Sharrock Pitman Legal. Please contact us on 1300 205 506 or by email litigation@sharrockpitman.com.au if you require further assistance.

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 difference between mediation and arbitration?

Mediation is an alternative dispute resolution process whereby the parties seek to resolve disputes by reaching a mutually-agreeable settlement, and thus avoiding litigation through the courts.

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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What is the process for Mediation?

Mediation is an alternative dispute resolution process whereby the parties seek to resolve disputes by reaching a mutually-agreeable settlement, and thus avoiding litigation through the courts.

Opening Statement

Statement by the Parties

Information Gathering

Clarifying Interests and Problem Identification

Reaching an Agreement