Mediation in Victoria.
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Mediation is compulsory in will contest cases.
The law is such, that a Duty Judge will not allow a case to go before the court for hearing until the parties have attempted to settle the dispute; unless there is some very special reason that mediation should not take place.
Leading up to Mediation:
The parties will file court documents commencing proceedings including either a 'Position Statement' or an 'Affidavit' of evidence outlining the claim. There may be further evidence filed at a later date by the parties if required however usually the above documentation is sufficient for the purpose of mediation.
The mediator is agreed by the parties legal team with the consent of the parties and failing agreement the court may appoint either a private mediator.
Whether the mediation is with a 'private' mediator or court appointed the mediator you will be required to sign and acknowledge the rules including those of confidentiality.
Mediation Rules in Victoria:
The mediation agreement covers the following;
1. The mediator’s fees are generally shared by the parties.
2. The Mediator will act fairly and impartially.
3. The Mediator will not make decisions for a Party or act as an arbitrator.
4. The Mediator will not give legal.
The Parties and the Mediator will not disclose any information or documents provided to them in the course of or for the purposes of the mediation to anyone not involved in the mediation.
Conflict of interest:
The Mediator will, to the best of his/her knowledge, disclosed to the Parties any prior dealings the Mediator has had with any of them and any interest the Mediator has in the Dispute.
Attending Mediation & Signing Agreement:
Unless otherwise agreed, each Party must be in attendance throughout the mediation.
Circumstances that Might Make the Mediation More Complicated.
As you would know, every family and every case is different. Sometimes will contests start out looking very straight forward but as time goes by things become more complicated. One of the most common complications arise when it becomes clear that a claimant is not providing full and frank disclosure of his or her financial position. This usually encourages the executor/defendant to instigate a series of subpoenas to be issued or notices to produce seeking details of the true position of the claimants financial affairs. This process can be extremely time consuming and therefore costly.
The other frequent complication arises when the executor/defendant is not providing full and frank details of the assets of the estate. That causes the claimant to issue subpoenas and notices to produce seeking the true value of the estate. Sometimes the executor/defendant has had the a power of an attorney or perhaps enduring power of attorney for many years prior to the death of the deceased. It is not uncommon for poor records to be kept by the attorney (now executor) yet these financial details can be extremely important in these cases. Trying to get answers can be very time consuming and costly.
Usually the cases that are straight forward and without too much drama involved are the ones where the solicitors on each side are experienced in this law and realise the implications of failure to disclose and convince their clients of the danger of not freely disclosing all relevant information. In the case of claimants not fully disclosing, the penalty can be harsh including reduced provision out of the estate or no order for provision at all. In the case of executors/defendants acting badly he or she can be penalised by way of costs orders against them.