What failed estate mediation often still achieves
A mediation that does not produce a full settlement is not necessarily a failure. Even unsuccessful estate mediations frequently:
- Narrow the dispute — the parties may agree on asset values or some distribution questions, leaving fewer contested issues for the court
- Resolve some claimants while others remain in dispute
- Reveal the other party's real position, helping legal advisers refine their approach to subsequent proceedings
- Demonstrate good faith, which courts consider in costs orders
Next steps after failed estate mediation
| Dispute type | Typical next step |
|---|---|
| Family provision claim | Contested Supreme Court hearing; costs usually from estate |
| Will validity dispute | Probate proceedings; contested hearing with expert evidence |
| Executor dispute | Application for removal of executor; court administration order |
| Beneficiary/distribution dispute | Administration action in Supreme Court; court-directed distribution |
Costs after failed mediation
Estate litigation costs are usually paid from the estate — meaning all beneficiaries bear the cost of the dispute, not just the losing party. A party who attended mediation in good faith and made reasonable proposals can sometimes use this to their advantage in costs arguments at the conclusion of the proceedings. A party who refused to mediate, or attended in bad faith, may face a personal costs order.
Is a second mediation worth trying?
Yes — often. Estate disputes where the first mediation broke down over asset valuations, executor access to information, or the presence of one difficult party sometimes resolve at a second session once these obstacles are addressed. An independent expert report on property values, or a change in the mediator, sometimes makes the critical difference. Courts support parties attempting a second mediation before hearing.
See our full guide: estate dispute mediation in Australia.
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