Mediation is a central part of court practice directions in succession law. In some states, such as Queensland and Western Australia, mediation is a mandatory part of a family provision claim. In other states, like New South Wales, Victoria and the ACT, mediation is not mandatory but it is almost invariable that the court will refer the parties to mediate.
The NSW Succession and Probate Lists Practice Note provides that “unless otherwise ordered, all proceedings involving a family provision application will be referred to mediation at the earliest practicable time.”
If the validity of the will is being contested, proceedings will almost always be referred to mediation before directions are given for a final hearing.
The practice note also provides that unless otherwise ordered or agreed by all parties, mediations will be Court annexed.
If the estate is worth more than $1 million, the court is very likely to order private mediation. If it does so, the court will usually order that the mediator’s fees and cost of venue hire would be paid out of the estate.
What is Court annexed mediation?
Court annexed mediations are mediations that are facilitated by the courts. The Court provides the mediation room and the mediator, who is usually a judicial registrar, free of charge.
Parties will still bear costs if they are represented by counsel at the mediation, as they will need to pay these fees. However, court annexed mediation is a low-cost alternative to private mediation and, especially, litigation.
If you are directed to attend court annexed mediation, it is mandatory that you do so.
Success Rates
In 2021, 872 family provision claims were filed in the NSW Supreme Court and 845 were resolved by negotiation or mediation. This is an extremely high success rate of over 90%.
Benefits
If an applicant is successful in their family provision claim, the court will usually order that their costs be paid out of the estate (subject to cost capping and other limitations). The defendant’s costs are also usually paid out of the estate, unless the defendant is found to have acted unreasonably.
As such, the longer a family provision matter goes on for, the higher the risk that the estate will be depleted, as most, if not all, of the legal costs associated with the case will be paid out from it.
Early settlement is therefore beneficial, as it preserves the value of the estate. Early settlement is also beneficial as it can help the parties preserve their relationships with one another. Resolving a claim earlier also saves time and stress for all involved.
DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.