In SA and Tasmania, and ACT there is a strong emphasis on mediation in family provision claims and there are very good reasons why settlement of a matter is preferred to litigation. Most importantly, costs are saved for the estate which can include the costs of the applicant and these savings remain available for distribution to the deceased's intended beneficiaries.

In NSW, Victoria, Queensland, and Western Australia mediation is compulsory in family provision claims.

See Court ordered mediation.

Supreme Court of NSW — Practice Note SC Eq 7 — Family Provision allocates specific tasks to each party to prepare for mediation so that all necessary information is available and up to date. This includes updating valuations of the assets of the estate and of each applicant and the preparation of a bundle of documents which includes those valuations and the affidavits.

The mediation will proceed as other mediations proceed with offer and counter offer. Either a settlement will occur or the issues in dispute may be narrowed.

Mediation is compulsory and court ordered. The consent orders set out steps that should occur prior to mediation so that all necessary information is available to all parties and the mediator. The mediation will proceed as other mediations proceed with offer and counter offer. Either a settlement will occur or the issues in dispute may be narrowed.

Practice Direction No 8 of 2001 sets out steps that should occur prior to mediation so that all necessary information is available to all parties and the mediator. The mediation will proceed as other mediations proceed with offer and counter offer. Either a settlement will occur or the issues in dispute may be narrowed.

The Practice Direction sets out what is required by all parties at a court directed and court ordered mediation.

The parties will often agree to mediation and any such mediation will progress in accordance with the directions given by the mediator. If the parties agree, a Judge or Master may, under Rule of the Supreme Court Civil Rules 2006 (SA), appoint a mediator or a Judge or Master is also empowered to act as a mediator. After setting a date for mediation before a Judge or Master, the judicial officer will often give directions as to information to be exchanged before the mediation and as to provision of position statements.

The parties can consent to mediation or the Court can order the parties to attend mediation pursuant to r 518 Supreme Court Rules 2000 or the s 5 Alternative Disputes Resolution Act.

Prior to mediation, the registrar may convene a pre-mediation conference between the parties’ solicitors to ensure that all relevant material has been exchanged between the parties and provided to the mediator prior to mediation.

Mediation is not mandatory, but it is expected. Informal mediations are common. Either party can apply to the court for a mediation order or direction. The court can direct mediation of its own motion. The mediation will proceed as other mediations proceed with offer and counter offer. Either a settlement will occur or the issues in dispute may be narrowed.

See Preparation for mediation.

If a settlement occurs the registrar is empowered to make orders based on consent orders drafted by the parties which must include certain formalities. If the executor requires the approval of a release contained in a Deed of Release, the registrar will set down a date for the hearing of the application for approval of the release pursuant to s 95 of the Succession Act 2006 (NSW). Such applications are heard by Associate Judges.

If proceedings are issued (and there are no persons under a disability who are affected by the proceeding or the settlement of the proceeding) then consent orders can be filed with the court for the Associate Judge to make ‘in chambers’, if he or she believes that the orders sought are appropriate having regard to all the circumstances of the case.

If there is a settlement then the usual course is to obtain final orders from the court. The Registrar in Queen-sland will not make the orders pursuant to r 666 of the Uniform Civil Procedure Act and the matter needs to go before a Judge, usually in the Applications List — see Practice Direction No 4 of 2010.

If a settlement occurs the Registrar is empowered to take a draft copy of those consent orders drafted by the parties and forward them to the Master who makes the orders. If a deed of family arrangement is required the agreement is signed subject to the preparation and signing of the deed. The deed is forwarded by the Registrar to the Master who makes an order on the papers.

If proceedings have been issued, the usual procedure is to have the matter brought before a Master of the Supreme Court for consent orders to be made. Section 9 of the Act sets out the minimum contents of the order. A certified copy of the order must be attached to the probate and it is the executor’s responsibility to organise this.

Because of the wording of s 3 of the Testator’s Family Maintenance Act 1912 (Tas) a consent order may only be made by the court if the court or a judge (including the Associate judge) believes that the order is an appropriate one having regard to all the circumstances of the case. Information sufficient to show that the pro-posed orders are proper must be provided in one or more affidavits and/or in agreed facts.

Practice Direction No 2 of 2008, Order 48 r.13(8) provides steps to prove settlement or admissions made in a mediation either in court or a proceeding without the consent of the parties. The provision reflects the common law rule which permits a party to “without prejudice” settlement negotiations to prove the terms of a settlement reached orally during negotiations, even though the privilege attaching to the negotiations does not disappear. The result is that the court can receive evidence to ascertain whether a binding contract was reached and, if so, what were its terms.

Any agreement reached at mediation will be recorded in writing in a deed of family arrangement or by consent orders if proceedings have already been initiated. Even where proceedings have been initiated it is possible for a deed of family arrangement to be entered into and the court proceedings discontinued.

See Actions if there is a settlement.