Reflecting on my practice both representing parties and acting as mediator I have observed that there are several key questions that practitioners should be mindful of when preparing for mediation.
1: Am I mediating too early?
Pre-litigation mediations have become popular to avoid the costs of issuing proceedings. Indeed, they can be an effective tool to break the ice and start a conversation. However, a pre-litigation mediation may be premature if either party is not able to properly participate. Most common examples include: a plaintiff that seeks a family provision but has not disclosed particulars of their financial position or need; or executors who have not fully established the nature or value of the estate. If that is the case, a pre-litigation mediation may still be useful to clarify issues in dispute or agree on processes to move the matter forward.
2: Have we considered any potential taxation implications?
It is vital for all parties to have given careful thought and perhaps obtained specialist taxation advice regarding potential taxation implications of settlement. This question can be especially relevant if an estate is complex in nature or if the plaintiff receives any type of pension or benefit that may be impacted by the settlement.
Clients may choose to settle a proceeding subject to further taxation advice; this may give rise to further dispute if the advice does not confirm the client’s expectations. Ideally these issues would be ventilated before attending a mediation.
3: Are we trying to do too much?
Parties to complex disputes that involve multiple intricate issues in dispute may become overwhelmed attempting to resolve all issues in a single day. Depending on a matter’s complexity and the disposition of the parties involved, it may be more productive for the parties to agree to multiple half-day mediations. With each mediation being allocated discrete issues for discussion.
This approach can be beneficial for two reasons.
First, if parties find common ground early on the smaller issues it can establish mutual goodwill which can be drawn upon for more difficult discussions. Secondly, where parties are not physically or emotionally able to withstand a full day mediation a shorter session can focus the parties and lessen the possibility parties are settling due to overfatigue.
4: Does this matter require a pre-mediation conference between lawyers?
In my experience this question should be considered more often. In circumstances where parties are all legally represented, it can be hugely beneficial for the mediator and legal representatives to meet for a brief discussion prior to the mediation. It can be an excellent way to ensure that the parties are on the same page and aren’t expending energy and time on issues not in dispute.
In family provision disputes a pre-litigation conference can identify any potential obstacles to settlement – for example, grandma’s silverware or grandpa’s medals. In disputes that require more technical legal argument these conferences can be helpful to identify the perceived strengths and weaknesses of an argument, and to reality test arguments. These discussions can often provide moments of clarity which can be useful in preparing for the mediation or streamline the discussion on the day.
Mediations in the wills and estates area are a valuable tool that allow parties to reach their own solution to their dispute. Hopefully, properly prepared parties can reach a satisfactory outcome and potentially may preserve the family relationships that are often strained during these disputes.
Sandra is a barrister and a nationally accredited mediator with a broad commercial practice. She has specific expertise in the areas of equity, trusts, superannuation and deceased estates. Sandra has held a long-term interest in the international law of armed conflict, focusing on the experience of child soldiers. This interest motivated her to complete a Master’s of Public and International Law at Melbourne University. Sandra is an updating author for Thomson Reuters’s civil procedure commentary, ‘Victorian Courts’. Sandra serves as an Assistant Convenor of the Women Barristers’ Association. Connect with Sandra on LinkedIn.