By the time most families consider mediation, it’s harder than it needs to be.
Positions have been stated publicly. Lawyers have been engaged. Letters have been exchanged. Each side has committed to a version of events that is now difficult to walk back from. What might have been a two-hour conversation has become a months-long dispute with significant financial and emotional cost.
Mediation works. But it works best before any of that happens.
What Estate Mediation Actually Is
Mediation is a structured negotiation process facilitated by a neutral third party whose job is to help the parties reach a mutually acceptable resolution. The mediator does not decide the outcome, they facilitate a conversation that the parties could not successfully have on their own.
In an estate context, mediation can address disputes over the distribution of assets, interpretation of specific provisions in the will, conflict over how particular assets should be handled, and allegations of unfairness by the executor.
Why Timing Matters More Than Most People Realise
Early mediation before formal claims have been filed, before lawyers have framed positions publicly, before family members have had months to build grievances, allows people to engage from a place of genuine problem-solving rather than entrenchment.
Late mediation, often mandated by courts before litigation, happens when both sides have spent significant money, committed to formal positions, and are emotionally exhausted.
The difference in cost, time, and relationship damage between early and late mediation can be enormous.
Signs That Mediation Should Be Considered
As executor, consider mediation when:
- A beneficiary has expressed significant dissatisfaction with the distribution
- There is a pattern of conflict in family communications
- A beneficiary has sought their own legal advice
- The estate contains assets with high emotional charge
- You sense the situation is moving toward formal dispute
You do not need to be certain a dispute will happen to benefit from mediation.
Mediation and Your Role as Executor
As executor, you have specific legal obligations. Any resolution reached through mediation that departs from the terms of the will needs to be properly documented, typically through a deed of family arrangement and should be reviewed by your solicitor before you agree to it.
Conclusion
Litigation is not inevitable in an estate dispute. But avoiding it requires action and that action is most effective early.
At Fennelly Legal, we help executors assess when mediation is appropriate and how to approach it in a way that protects their position. Reach out to Fennelly Legal today.
Please Contact us to book a free chat (03) 5243 1959.
Stuart Day
Fennelly Legal