It is important for all participants in mediation to understand how their confidential information is protected. Confidentiality is critical for any mediation to be successful because you need to be able to frankly discuss the issues without fearing that what you say could be used against you later. For this reason, there are important protections to ensure your confidential information is not used to your disadvantage.

The Mediator's commitment to confidentiality

A Mediator facilitates the disputing parties to reach an agreement. To do this effectively, the Mediator needs to understand the position of both parties. Each party will enter a Mediation Agreement with the Mediator in which the Mediator promises to keep each party's information confidential. Here are some things to keep in mind:

The Mediator must not provide information to the other side which they have received from you, without your consent.
You can discuss your position with the Mediator, knowing the Mediator will not let the other side know your position without your consent.
When you do authorise the Mediator to speak to the other side on your behalf, make sure they confirm with you exactly what they are going to say to the other side.
Position papers provided to the Mediator prior to mediation should be marked "Without Prejudice" to indicate that they should not be used as evidence in Court.
It is standard practice for Mediators to destroy their notes after the mediation is complete.

By entering a Mediation Agreement, the Mediator is contractually bound to protect your confidential information. They are also under professional ethical obligations to do the same. This means you can openly discuss your matter with the Mediator and seek their advice, knowing that your confidential information is safe with them.

Confidentiality and evidence in court

What if you fail to resolve your dispute at mediation and your matter goes to court? Under section 131 of the Evidence Act 2008 (Vic), information that you provide to the other side in an attempt to negotiate a settlement cannot later be used in court as evidence. This means that you can make offers and discuss your dispute in good faith, without having to fear that what you say will come before a court.

Of course, you are still providing the other side with information that they can use to their tactical advantage, so caution is still required when you are discussing issues with the other side.

There are some important exceptions to the rule preventing confidential information provided during mediation from being used in court. The main exceptions are:

The dispute in court is a dispute to enforce an agreement. This means that, if the parties reach an agreement at mediation, then evidence of that agreement can be used in court to enforce the agreement.
The evidence is being used to determine which party is liable for legal costs. The general rule is that the loser in court proceedings pays part of the other side's legal costs. However, if a party has rejected a reasonable settlement offer, then they may lose some of their entitlement to costs or be required to pay costs themselves. Evidence of settlement offers can be brought before the court to determine this question.
The parties consent to the evidence being presented to the court.
The confidential information has been disclosed with the consent of all parties or the information was not intended to be confidential in the first place.
The evidence was used to further a fraud, offence or abuse of power.

Basically, if you fail to resolve the dispute at mediation, a court will not take into account settlement offers and other confidential information provided during the mediation when determining the dispute in question. However, a court may look at the evidence to determine costs or whether there is an enforceable agreement.

These protections ensure mediation is a safe and effective means of resolving disputes between parties.

How can Sharrock Pitman Legal help me?

We have extensive experience assisting customers to resolve their legal disputes. 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 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

Caroline Callegari

Caroline Callegari is an Associate Principal and leads our Disputes & Litigation team. She has an advisory and advocacy practice in the following areas: Commercial Litigation, corporate and personal disputes, debt recovery and, insolvency and bankruptcy matters. Caroline can be contacted on (03) 8561 3324.

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What is the process for Mediation?

It is important for all participants in mediation to understand how their confidential information is protected. Confidentiality is critical for any mediation to be successful because you need to be able to frankly discuss the issues without fearing that what you say could be used against you later. For this reason, there are important protections to ensure your confidential information is not used to your disadvantage.

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:

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(03) 8561 3318

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