Family

Mediation – Know the basics

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Mediation is an alternative dispute resolution process which aims to resolve disputes in a cost effective and efficient manner. The mediation process allows those involved in a dispute to meet with an independent third party, known as a mediator and genuinely attempt to reach a resolution prior to court proceedings.

The mediator plays a crucial role in mediation, acting as a neutral person responsible for ensuring that parties have an opportunity to communicate their goals, issues and desires to reach a resolution across a wide range of disputes. The additional benefit is that all discussions within mediation are kept confidential.

Mediation has cemented itself as a successful step in resolving disputes across various areas of law including but not limited to family law matters such as property settlement and neighbourhood disputes.

Further, parties are able to participate in mediation in public formats, such as community justice centres or privately through mediation centres. Therefore, the timeline for when parties can meet to discuss their dispute may vary as per the avenue they select.

What are the benefits?

Mediation is known for the many benefits it offers to parties of a dispute. Such benefits include:

1.     Cost effectiveness: Mediation is more cost effective than Court proceedings;

2.     Informality: The informal nature of mediation allows people to feel more comfortable negotiating and discussing the issue at hand;

3.     Preservation of Relationships: If both parties are willing, mediation may also preserve the relationship of the parties in comparison to Court proceedings given the cooperative nature of mediation being less adversarial than Court;

4.     Time efficiency: The Court process is often time heavy and may take several weeks, month or even years to achieve a Court Order. As such, mediation gives the opportunity for a matter to be settled in a time effective manner;

5.     Varying Agreements: Often when a matter is brought before a court, a Court is limited in their ability to customise agreements and Orders. Mediation allows for both parties to customise and modify their agreement to best suit the circumstances of the parties.

What happens if it doesn’t work?

Often once a resolution is agreed upon by the parties, it can then be formalised in writing and upheld as an agreement, however if a resolution is not achieved, parties can commence Court proceedings, depending on the nature of the matter.  

If you are experiencing a dispute that you need assistance in resolving, please contact Coutts on (02) 4647 7577 to book an initial appointment so we may assess your legal options for dispute resolution.  

If you have any questions or for further information contact:

Riley Earle
Lawyer
riley@couttslegal.com.au
02 4607 2114

 

 

 

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

Q&A: A simple Will

Thinking about preparing a Will? While your Will may be rather simple, our Solicitor Kaisha points out some things to consider over at Echofied.

Q:

I need to write a Will. As it is likely to be rather simple (leave everything to my wife, then daughter) can I simply type it out and store it securely, or is legal advice necessary?

A:

Hi Michael,

Whilst your wishes may be rather simplistic and legally you are allowed to write your Will yourself, a DIY Will template is not always a great idea! Will drafting can be quite complex. There are certain ways of writing clauses in Wills that have been tried and tested over the years, so as to remove any confusion or uncertainty about what you are trying to achieve with your Will. There are also very strict rules about signing your Will and having it witnessed. Common mistakes in signing your Will could mean that your Will is invalid.

There are some situations where I would consider it absolutely necessary to obtain legal advice:

  • If you own property or investments in another state or overseas.
  • If you own a business or are an officer of a Company.
  • If you are financially responsible for someone other than your immediate family.
  • If you are trying to set up a testamentary trust for a particular beneficiary.

Whilst you might save money with a DIY today, there may be large costs to your Estate if you get anything wrong.

Need to get your Will organised before the New Year? Talk to the team at Coutts Solicitors & Conveyancers.

This Q&A first appeared online at Echofied

Wills: A family recipe

As the festive season starts to crank up people are busy planning their Christmas dinners. Each family have their own traditions and this is reflected in the different types of food they serve up. We take care to plan meals that people can share and enjoy.

When discussing a Will with a client, different family arrangements often come up as well. Common ingredients we use to provide a person with peace of mind that their final wishes will be carried out include:

2 cups of fairness

Does an equal split of your assets among children result in a fair outcome? Maybe one child has a greater need to be provided for.

1 cup of kindness

Is there a charity who could benefit from a gift? Leaving your favourite charity some money is a great way to support their work.

1 cup of forgiveness

It is common for people to give a son or daughter a lump sum gift towards the purchase of their first home with a joking comment “here is an early inheritance”. But what does that expression mean? Does it mean it’s a loan from you that they need to repay to your estate? Or, is it meant to come out of their share of the estate? Whatever you mean by it, we need to include a specific clause.

1 tablespoon of executor clauses

This is to ensure that your executor is not just appointed, but is empowered to undertake a variety of roles to properly see to the administration and distribution of the estate.

Method

Once you have your ingredients all combined, we blend it together. Oh, and speaking of blended families, if you own property with your partner, how you hold that property is vital. If you are both joint tenants, the other joint tenant will automatically inherit your share in the property regardless of what your Will states. This can cause tension as people can have real fears that their own children might miss out because the new partner takes the house - often the main asset of the estate.

For alternative toppings, what if the partner re-partners and they update their Wills? What if they have a falling out with your children? These are all valid concerns but if you own the property as tenants in common, your Wills can state who you wish to give your share of the property too. This will result in your partner and your children ending up on title together. This could be fantastic and everything you dreamed of or, a recipe for disaster itself.

These are not easy decisions to make and much like cooking a macaron, getting the balance between your partner and your children is vital, so it doesn’t all collapse in a big mess.

Serve your Will with the correct execution - two independent witnesses, both over eighteen who know exactly where to sign. Store in a safe place. If properly drafted, it should stay fresh for many years to come.

Remember - everyone’s family is different. If you think it’s too hard to make arrangements in a Will this doesn’t mean you should toss it into the too hard basket. Departing the world without a Will is harder on those left behind.

Need to get your Will organised before the New Year? Talk to the team at Coutts Solicitors & Conveyancers.