Key Takeaways
- Alternative dispute resolution, or ADR, can help resolve inheritance disputes in WA without the parties immediately going to court.
- Common ADR processes include negotiation, mediation, collaborative practice, and arbitration.
- Negotiation and mediation are often the main pathways for resolving inheritance disputes before court.
- The Court process may still be needed where assets are at risk, evidence must be protected, or other urgent orders are required.
- Early legal advice helps you choose the right pathway before positions harden or the estate is distributed.
Inheritance disputes rarely begin as legal disputes. They begin with grief, uncertainty, old family tensions, financial pressure and a fear that something has gone wrong.
They are also becoming harder to ignore. Our research shows that 1 in every 3 Western Australians expect an inheritance dispute within their family.
But a courtroom process is not always the first or best path.
Alternative dispute resolution can give families a structured way to resolve inheritance disputes without running straight for the courtroom door.
What is alternative dispute resolution in an inheritance dispute?
Alternative dispute resolution, or ADR, is a way of resolving disputes without asking a court to make the final decision.
In an inheritance dispute, that might mean a disappointed beneficiary challenging a Will, an executor trying to manage competing claims, or interpreting the terms of a Will, or family members disagreeing about whether the estate has been dealt with fairly.
Rather than moving straight to litigation, alternative dispute resolution can give the parties a practical framework to identify the real issues, exchange information, understand the risks, and work towards reaching an agreement.
The main ADR processes used in or around estate disputes include:
- 1. Negotiation: This is commonly the first step. The parties, often through their lawyers, exchange correspondence, clarify the issues, and try to reach agreement before formal proceedings are needed.
- 2. Mediation: Mediation involves an independent mediator assisting the parties to discuss the issues, assess settlement options and work towards agreement. The mediator does not make a decision – but helps the parties to agree themselves.
- 3. Conciliation: Conciliation is similar to mediation, but the conciliator may take a more active role by identifying issues, offering guidance, and suggesting possible ways forward. It’s more common in some tribunal, family law, workplace, consumer and government agency settings than in inheritance disputes, but it remains part of the broader ADR landscape.
- 4. Collaborative practice: Collaborative practice is a more structured process where the parties and their lawyers commit to resolving the dispute without going to court while the process is underway. It can be useful where preserving relationships matters, such as blended families, family businesses or farming estates.
- 5. Arbitration or expert determination: These processes are more formal. In arbitration, an independent arbitrator considers the arguments and evidence and makes a binding decision. Expert determination may be used for a narrow issue, such as a valuation or accounting dispute – or where there is a genuine technical issue to be settled.
In inheritance law, negotiation and mediation are usually the most common pathways. But the right course depends on the nature of the dispute, the estate, the urgency, and whether the parties are willing to resolve their disputes without a final hearing.
Get our ultimate FAQ guide on all things inheritance, Wills, estates and succession.
Why ADR is often suited to inheritance disputes
Inheritance disputes carry a different weight.
The estate is finite. The parties are often family. The disagreement may involve grief, financial dependence, blended family tensions, broken promises, perceived favouritism, or uncertainty about what the deceased really intended.
That’s why alternative dispute resolution can be such a useful pathway.
ADR can help:
- protect the value of the estate by reducing the cost of prolonged litigation
- reduce delay and help the parties move towards resolution sooner
- give the parties more control over the outcome
- preserve relationships where there is still something worth preserving
- allow practical or nuanced outcomes a court may not be able to order
- help everyone understand the strengths, weaknesses and risks in their position
Those practical outcomes can matter deeply in estate disputes. A resolution may involve staged payments, agreed property transfers, arrangements around sentimental items, all covered off in a binding Deed of Family Arrangement.
The right ADR process gives structure to difficult conversations. It helps the parties understand the dispute clearly, test the risks, and consider whether reaching an agreement is possible before positions become fixed.
For many families, that’s the clearest path to resolving disputes with dignity.
Read more: Inheritance disputes: costs, risks and outcomes.
Negotiation before mediation or court
Negotiation is the process of clarifying each party’s position and testing whether agreement can be reached before formal court proceedings are needed.
It often begins when a person raises concerns with the executor, a beneficiary, or another person involved in the estate. From there, lawyers may exchange letters setting out each party’s position, the basis of the claim or response, and the information needed before any agreement can be reached.
In a Western Australian inheritance dispute, negotiation may involve:
- the person challenging the Will or seeking further provision
- the executor or administrator of the estate
- the beneficiaries whose inheritance may be affected
- lawyers for each party
- accountants, valuers or financial advisers where the estate is complex
Early legal advice matters. An experienced inheritance lawyer can reassure you as to when an early negotiation is likely to have real value.
Read more: When can assets of a deceased estate be distributed?
For Family Provision Act 1972 (WA) claims, timing is critical. The Act allows certain eligible people to seek provision from a deceased estate where adequate provision has not been made for their maintenance, support, education or advancement in life.
It also provides that an application generally must be made within six months from the date the administrator becomes entitled to administer the estate in Western Australia, unless the Court gives leave to apply out of time.
Negotiation is more than a difficult family conversation. Once an estate or inheritance is involved, every letter, disclosure request, offer and response can carry legal and financial consequences.
Handled well, negotiation can clarify the issues early, preserve estate value, and give the parties a chance to reach agreement before things get out of hand.
Mediation in inheritance disputes
Mediation is a confidential process where an independent mediator assists the parties to identify the issues, understand each other’s positions, test the risks, and explore whether settlement is possible.
The mediator doesn’t decide who is right or wrong. Instead, their role is to guide the discussion and create a structured setting for resolution.
In inheritance disputes, that focus matters. Mediation gives each side the chance to be heard while keeping attention on resolution.
How mediation starts
Mediation can happen before court proceedings are filed, or during it – after a claim has started.
In private mediation, the parties agree on the mediator. That person may be a senior lawyer, barrister, retired judge, or an experienced dispute resolution practitioner.
Where estate proceedings have started in the Supreme Court of Western Australia, the Court can also make orders sending the matter to Court-ordered mediation. Court mediation in Western Australia is conducted by a registrar or judge, and the Court describes it as a confidential process where the parties retain control over settlement.
Who attends mediation?
The people who attend depend on the dispute, but can include:
- the person making the claim
- the executor or administrator, where their role is relevant
- the beneficiaries whose entitlements may be affected
- lawyers for each party
- approved support people or advisers
- the mediator
In larger or more complex estates, accountants, valuers or financial advisers can also assist with preparation or attend where their input is needed.
What happens on the day?
Many mediations begin with a joint or open session, where everyone comes together and the mediator explains the process. Each side can then outline their position.
The parties then move into separate private rooms for confidential discussions. The mediator moves between the rooms, helping each side test their arguments, consider the evidence, assess their risk, and explore possible settlement options.
For Supreme Court mediations, the Court has purpose-built mediation rooms, including spaces for joint sessions and smaller private sessions. Most mediation hearings are held at the David Malcolm Justice Centre at 28 Barrack Street in Perth, and there is no additional charge for the mediator’s time or court facilities in that court-ordered mediation context.
What happens if an agreement is reached?
If the parties reach an agreement, it should be recorded clearly before anyone leaves the process. Depending on the matter, that can involve an informal settlement agreement, a binding Deed of Family Arrangement, or formal court orders.
An agreement reached at or after mediation can take effect immediately and can also be confirmed in a court order, which can then be enforced by the Court.
What happens if mediation doesn’t resolve the dispute?
Even an unresolved mediation still has value. It can be used to narrow the issues, clarify what evidence is needed, and reduce the time and cost of any later hearing.
Many mediated inheritance disputes resolve within months, depending on the level of disclosure, valuations, evidence and the willingness of the parties to engage.
Litigation through to trial always takes much longer, especially where serious issues like capacity, undue influence, proving parentage, estate accounting/valuing or complex family dependency issues are involved.
Mediation can give families a way forward before the estate is consumed by process. For many, it’s the point where the matter finally starts to move.
Read more: Beyond the Will: How mediation protects family legacy
Collaborative practice for family estate disputes
Collaborative Practice is a structured alternative dispute resolution process where the parties and their lawyers/other advisors all commit to resolving the dispute without going to court while the process is underway.
Collaborative Practice is distinct from ordinary mediation. Mediation is built around an independent mediator helping the parties test options in a contained forum. Collaborative Practice is a broader, advisor-assisted process, often involving a series of planned meetings, full disclosure, and ongoing support from collaboratively trained lawyers and other professionals.
Learn more about mediation vs collaborative practice and which pathway might be right for you.
The Participation Agreement
At the start, the parties to a Collaboration sign up to a Participation Agreement.
This sets the ground rules for the process, including respectful communication, honest exchange of information, confidentiality, and a shared commitment to stay out of court while the collaborative process continues.
That commitment matters. If the process breaks down and litigation becomes necessary, the collaborative lawyers must withdraw from acting further in the dispute. This keeps the focus on resolution, rather than anyone preparing for court in the background.
When collaborative practice can work well
Collaborative Practice can be especially useful where the dispute involves:
- blended families
- family businesses
- farming properties
- succession planning promises
- ongoing relationships between beneficiaries
- complex financial or trust structures
- parents, siblings or stepchildren who still need to communicate after the dispute is resolved
Other professionals can also assist, including accountants, financial advisers, counsellors, coaches or mediators.
A structured path away from court
Collaborative Practice requires genuine participation. It works best where the parties are willing to disclose information honestly, listen to advice, and stay focused on a workable outcome.
For families who want structure, privacy and control, it can provide a clear alternative to court-driven estate litigation.
Read more: Collaborative Practice as a New Form of Resolution.
Arbitration and expert determination in estate disputes
Arbitration and expert determination sit at the more formal end of alternative dispute resolution.
They are less common in inheritance disputes than negotiation or mediation, but they can be useful in the right matter. The key difference is that these processes are designed to produce a decision, rather than simply assist the parties to reach agreement.
Arbitration
Arbitration is a private decision-making process. The parties appoint an independent arbitrator, put forward their case, and receive a binding decision.
It sits closer to a private hearing than a facilitated negotiation. It can offer more privacy than court, but it still requires proper preparation and clear legal advice.
Estate disputes aren’t always suited to this pathway. Some matters need the rigour and procedure of court supervision. Others involve urgent protective orders, or affect people who have not agreed to be bound by an arbitrator’s decision.
Expert determination
Expert determination is usually narrower than arbitration.
It’s used when the parties need an independent expert to decide a specific technical issue, rather than the whole dispute. The expert is chosen for their specialist knowledge. Their role is to review the material provided, apply their expertise, and make a determination on the issue referred to them.
In an estate dispute, expert determination can assist with issues such as:
- valuing a business or farming property
- assessing company or trust accounts
- determining the value of shares or partnership interests
- resolving a specific accounting question
- clarifying a technical financial issue before negotiation or mediation continues
Expert determination can be useful where a technical question is blocking a negotiation or mediation. Once that issue is resolved, the parties may be in a better position to reach agreement on the broader estate dispute.
It’s less useful where the dispute turns on family provision, testamentary capacity, undue influence, or whether the Will reflects the deceased’s true intentions. Those issues often require legal questions to be settled and assessment of individual witness evidence.
Used well, expert determination can help parties narrow the dispute and avoid unnecessary delay.
When ADR is not the right pathway
Although ADR is valuable, it’s not the answer to every inheritance dispute.
Some matters need decisive legal action.
In those situations, delaying for negotiation or mediation can increase the risk, weaken the position, or allow damage to be done before the dispute is properly contained.
Court intervention may be needed where:
- estate assets are at risk of being sold, transferred or wasted
- an executor is distributing the estate before a claim is resolved
- urgent orders are needed to preserve property or prevent dissipation of assets
- there are serious concerns about whether the Will is valid
- testamentary capacity or undue influence needs to be tested through evidence
- one party refuses to provide proper information
- a beneficiary or executor is acting in bad faith or refuses to engage in the process
- limitation periods are close to expiring
This is especially important in disputes involving capacity, undue influence or suspicious circumstances around the making of a Will. Those issues can turn on medical records, solicitor file notes, witness evidence, family history and the Will-maker’s conduct at the time the Will was signed. A structured ADR process may still happen later, but that evidence must first be gathered, protected and understood.
The same applies where an executor is moving too quickly. Once estate assets are distributed, recovering them can become more difficult, more expensive and make an outcome more uncertain.
ADR can still play a role later, but protection comes first.
How to choose the right dispute resolution pathway
The right pathway depends on what needs protecting.
Some inheritance disputes need a careful negotiation strategy. Others need mediation, Collaborative Practice, expert input, or court intervention before anything else can safely happen.
When deciding which course to take, consider:
- the size and complexity of the estate
- whether assets are at risk of being distributed, sold or wasted
- whether court proceedings have already started
- whether the parties are willing to engage in good faith
- whether the dispute is mainly legal, financial, factual or emotional
- whether independent valuation or expert advice is needed
- whether the estate has already been partly or fully distributed
- whether preserving family or business relationships still matters
- whether the cost of the process is proportionate to the value of the dispute
The willingness of the parties also matters. Alternative dispute resolution works best when people are prepared to exchange information, listen to advice, and make decisions with the full picture in front of them. Where one party refuses to engage, hides information or uses delay as a tactic, stronger legal steps may be needed.
Other difficult issues like addiction, health and capacity concerns, and risks of violence may mean that an ADR pathway is simply unsuitable.
The aim is to choose the pathway that gives the dispute the best chance of resolution while protecting the estate and the people involved.
The role of legal advice in ADR
Alternative dispute resolution can help resolve an inheritance dispute without a final court hearing, but each step should be taken with a clear understanding of the legal position.
Before entering negotiation, mediation, Collaborative Practice, arbitration or expert determination, each party should understand:
- whether they have a recognised claim or defence
- what evidence is needed
- whether limitation periods apply
- what estate information should be disclosed
- whether urgent steps are needed to protect the estate
- which ADR process best fits the dispute
- Costs implications of any step taken
Legal advice is also important when an agreement is reached. Depending on the matter, the outcome may need to be recorded in an informal settlement agreement, a binding Deed of Family Arrangement, Court orders or other formal documents.
A resolution only helps if it’s clear, enforceable and capable of being carried out.
Find the right path before the dispute hardens
Inheritance disputes can escalate quickly. The earlier you understand your options, the easier it is to choose a pathway that protects the estate, your position, and the people involved.
If you’re facing an inheritance dispute in Western Australia, speak with our inheritance dispute lawyers in Perth before positions become fixed or assets are distributed.
Book a free 15-minute phone call with Solomon Hollett Lawyers and get clear guidance on your next step.
FAQs
Is mediation binding in an inheritance dispute?
Mediation itself is not binding. The mediator does not make a decision or impose an outcome.
If the parties reach an agreement, that agreement can become binding once it is properly documented. Depending on the dispute, this may involve a a Deed of Family Arrangement or Court orders made by consent.
Who pays for mediation in WA?
It depends on the type of mediation.
In private mediation, the parties usually agree on how the mediator’s fees and other costs will be shared. Each party is generally responsible for their own costs, unless another arrangement is agreed.
Where mediation is ordered through the Supreme Court of Western Australia, there is usually no additional charge for the Court mediator’s time or court facilities. The parties will still need to consider their own legal costs and preparation costs.
Can I still go to court if mediation fails?
Yes. If mediation does not resolve the dispute, the matter can continue through the court process.
Even when mediation does not result in settlement, it can still help narrow the issues, clarify the evidence, and make the next steps clearer.
How long does mediation take in WA?
The mediation itself may take one day, several days or only a few hours. But the preparation can take longer.
The timing depends on the complexity of the estate, the number of parties involved, whether valuations are needed, how quickly information is disclosed, and whether court proceedings have already started.
Many inheritance disputes can be resolved through negotiation or mediation within months. A matter that proceeds all the way to Court trial will take much longer.
Do I need a lawyer for mediation?
In an inheritance dispute, legal advice is strongly recommended.
Mediation can affect inheritance rights, executor duties, the estate distribution, limitation periods and the terms of any final settlement. A lawyer can help you understand your position before mediation, prepare the right evidence, assess offers, and ensure any agreement is properly documented.
Dealing with an inheritance dispute, estate administration or probate matter?
Book a free 15 minute phone call with one of our lawyers today.
