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Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:


CALL: (03) 8561 3318

Today, as a result of increasing delays and the cost of litigation proceedings, many businesses and individuals are choosing to resolve their disputes outside of the courts through more cost-effective and efficient means. Alternative dispute resolution has proven to be popular in the commercial world, with two of the most common forms being mediation and arbitration. In this article, we will outline the key differences between mediation and arbitration.

What is mediation?

Mediation is an alternative dispute resolution process where the parties participate in a facilitated negotiation. The mediator, an independent third party, will explain how the mediation will take place and will assist the parties to identify and narrow down the key issues in dispute. This may involve asking questions and encouraging the parties to consider options and alternatives to resolve the matter.

As an independent third party, a mediator can provide creative solutions that the parties involved may not have considered prior to the mediation. A mediator however will not:

  • offer legal advice;
  • side with one particular party; or
  • impose any settlement between the parties.

During a typical mediation, the parties will be separated into different rooms. The mediator speaks with one party at a time by shuttling back and forth throughout the course of the mediation.

Mediation can be voluntary, court ordered, or required as part of a dispute resolution clause in a contract.

What are the advantages and disadvantages of mediation?

Some of the key advantages of mediation include:

  • It is less formal;
  • It is cheaper than arbitration or litigation;
  • It is confidential; and
  • The parties can offer innovative solutions that go beyond usual monetary offers due to the collaborative nature of mediation. This allows both parties to make offers that protect their commercial interests and preserve their business relationship.

Some disadvantages of mediation:

  • There is no guarantee that the dispute will settle, especially in circumstances where the parties are too far apart in their expectations.

What is arbitration?

Arbitration is a process of dispute resolution where an independent adjudicator makes a binding decision on the disputed issues based on evidence presented by the parties.

Arbitration has a more structured process compared to mediation and in this way, it is similar to litigation. However, arbitration differs from litigation as it offers a more flexible and efficient process and can often be finalised in a much shorter time period.

Arbitrators have a legal background and will usually have expertise in the area that is the subject of the dispute. An arbitrator’s decision can normally be registered in court, and then enforced like a court judgment.

What are the advantages and disadvantages of arbitration?

Some of the key advantages of arbitration include:

  • A final, binding decision that is made
  • It is quicker than litigation
  • It remains confidential between the parties unlike litigation
  • The process is flexible and can sometimes be determined by the parties.

A key disadvantage of arbitration is:

  • Arbitration often ends up costing roughly the same as litigation by the time the parties pay legal fees, the arbitrator’s fees and other expenses such as transcript fees and room hire costs.

How can Sharrock Pitman Legal help?

If you are involved in a dispute and wish to consider engaging in mediation or arbitration as a means of resolving the matter, we have legal practitioners who can assist in exploring your alternative dispute resolution options at Sharrock Pitman Legal. Contact our Litigation team on
1300 205 506 or alternatively fill in the contact form below.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by one of our lawyers

,

.

Lynda Lim

For further information contact

Simon Matters

Simon is a Senior Associate of Sharrock Pitman Legal.

He is an Accredited Commercial Litigation Specialist (accredited by the Law Institute of Victoria) and deals with Litigation, Mediation of Disputes, and Law for Charities & Not for Profits. For further information, contact Simon Matters on his direct line (03) 8561 3324.

More on

Mediation of Disputes

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be placed on the Supreme Court website for at least 14 days prior to any application.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself does not take long to process the application (maybe another 1 to 2 weeks) and this is done 'on the papers' using the electronic Court filing system. This means you do not have to go to a court hearing. There is also a general discretion for the Court to issue a 'Requisition' asking that you provide more information before they process the application and this can delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

  • Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
  • There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
  • There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.
  • You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
  • It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE: 
(03) 8561 3318

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About Sharrock Pitman Legal

For fifty years Sharrock Pitman Legal has made a significant and long term contribution to meeting the legal needs of business owners and residents in the City of Monash and greater Melbourne area.