The larger the estate, the more there is to fight over, and the more a fight costs. In a substantial estate, each side may retain senior and junior counsel, forensic accountants and valuers. Litigation can run for years. Legal costs are often paid in large part from the estate itself, which means the family is funding both sides of its own dispute. And at the end, a judgment sets out the family’s private affairs for anyone to read.
What collaborative practice is
In a collaborative process, each party has their own lawyer. Everyone, lawyers included, signs an agreement to resolve the matter without going to court. If the process fails, the collaborative lawyers must withdraw and the parties start again with new lawyers. That rule changes behaviour: everyone at the table is invested in reaching an agreement.
The process can bring in neutral experts the whole family shares, such as a single valuer, a single accountant, or a family consultant who helps with communication. There are no duplicated reports and no battle of experts.
Why it suits wealthy families
- Privacy. Nothing is filed in court until a settlement is ready to be approved, if approval is needed at all.
- Control. The family designs the outcome. It might be a restructure of the family company, a buy-out over time or a trust for the next generation, which a court could not order.
- Relationships. Families that share a business, properties or family occasions have to keep dealing with each other. Collaboration leaves that possible.
- Cost certainty. Shared experts and an agreed timetable cost a fraction of contested litigation.
When it is not suitable
If someone is hiding assets, is under undue influence or will not participate in good faith, the protections of the court process may be needed. Even then, early mediation can narrow the issues.
Frequently asked questions
What is collaborative practice in an estate dispute?
Collaborative practice is a process in which each party has their own lawyer and everyone, lawyers included, signs an agreement to resolve the dispute without going to court. If the process fails, the collaborative lawyers must withdraw and the parties start again with new lawyers, which keeps everyone focused on reaching an agreement.
How is collaborative practice different from mediation?
In mediation, a neutral mediator helps the parties negotiate, and their lawyers can continue into litigation if it fails. In collaborative practice, the parties and their lawyers commit from the start to settling without court, and the process can use shared neutral experts, such as a single valuer, a single accountant or a family consultant.
Is a collaborative estate settlement kept private?
Largely, yes. Nothing is filed in court until a settlement is ready to be approved, if approval is needed at all, so the family’s affairs are not set out in a public judgment. This privacy is one of the main reasons wealthy families choose collaboration over litigation.
When is collaborative practice not suitable for an estate dispute?
It is not suitable where someone is hiding assets, is under undue influence or will not participate in good faith. In those cases the protections of the court process may be needed. Even then, early mediation can narrow the issues in dispute and reduce the cost of what remains.
Chua Tan Associates advises families, executors, trustees and their professional advisers on estate planning, estate administration and estate disputes, in Australia and across borders. To arrange a confidential consultation, please contact our Melbourne office on +61 3 9602 3988 or submit an enquiry. Advice is available in English, Mandarin and Cantonese.
Justin Chua (蔡智勋), lawyer and mediator, Chua Tan Associates, Melbourne. General information only, not legal advice. Victorian law unless stated otherwise.
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