An Introduction to Mediation of Contentious Probate Disputes

Going to Court to resolve disputes over a Will or estate can be long drawn out and incredibly costly.  The outcome at court is also uncertain as is the case with all types of litigation: much depends on the view that a judge on a particular day takes of a particular piece of evidence or whether a witness performs well in the witness box. Parties often do not get the outcome that they want and they can be at risk for bearing both sides’ costs which may be financially disastrous.

For these reasons, many cases are resolved before going to Court. Mediation is a process which may increase the chances of settlement and also gives the parties a greater degree of control and certainty than having a matter decided by a judge. Accordingly, we frequently discuss with our clients the possibility of mediating wills and probate disputes.

What is Mediation?

Mediation is a form of “Alternative Dispute Resolution” (ADR) where an experienced mediator, who is a neutral third party is booked, usually for a day’s meeting, to help the parties to work towards agreeing a form of settlement.  The process has been well established now as part of dispute resolution for over 20 years. The parties jointly select a mediator and the mediator’s fee is usually borne equally between them. Mediators are individuals (often lawyers but occasionally other professionals) who have undertaken training and accreditation to mediate disputes. It is common experience that the majority of mediations result in a settlement, if not on the day then in the days or weeks following, due to the progress that has been made on the issues in the mediation process.

Because the Courts require parties to try and resolve disputes without legal proceedings and encourages them to undertake some form of ADR prior to going to court, if a party unreasonably refuses to mediation and the matter goes to Court instead, the Court may penalise that party on legal costs which provides with a powerful incentive to engage with the process, as well as the prospect of resolving the dispute at an earlier stage with less cost.

Mediation is a confidential form of “without prejudice” dialogue: matters discussed in mediation or offers made cannot be later brought up before a Court if the mediation fails. Within the mediation itself the mediator will not pass to the other party any piece of information or evidence shared with him or her in confidence unless expressly authorised to do so. The confidential nature of mediation therefore gives parties in a dispute the freedom to explore issues and settlement without concerns about what is said or conceded being used against them elsewhere.

What is the mediator’s role?

A mediator is not a judge or adjudicator and does not rule on any matters of dispute but is impartial and tries to assist the parties in understanding the other’s position, the risks for them and helps the parties to explore agreement.

The binding nature of mediation follows from the parties having entered into a Mediation Agreement in which they agree to be bound by the terms of a settlement if they reach one and then the settlement is  embodied in a formal Settlement Agreement, or if there are proceedings, a draft Court Order.

How does it work?

The parties agree to mediate or may be strongly encouraged to do so by a Court in cases where there are proceedings already underway. Parties do not usually go straight into mediation, it is usual for there to be a process of exchange of information first, usually in correspondence. A mediation bundle of the relevant documents, together with position statements summarising each party’s position are prepared and provided to the mediator a few days beforehand. The mediator will usually contact each of the parties’ lawyers before the day to introduce themselves and get a picture of what the client is trying to achieve.  If there have been any other attempts to settle these can also be detailed to assist the mediator understand the parties’ positions.

The risk of an issue being “ruled upon” against you as could happen in Court is therefore removed and compromised positions can be reached instead. In a dispute about which Will is valid for example, it is possible to reach a solution which is not an “all or nothing” outcome which would not be available at Court.

While in commercial disputes a mediation often starts with a “round table” or plenary session where the parties, directly or via their representatives, set out their respective positions. In contentious probate disputes however, because of the personal and often emotional issues for the individuals it is quite common for that stage process to be dispensed with. Often the participants are family members who are estranged and between whom personal relationships have broken down such that it may not assist and be counter-productive for the individuals to have to face or hear from each other directly. The mediator can provide a buffer between the different sides of the dispute.

During the mediation the mediator spends time with each party and discusses their case with them, and the key points which they want to put forward and performs a sort of “shuttle diplomacy” between the two rooms, parties, communicating factual or legal points that they wish to put to the other and, in due course, offers and proposals for settlement. There may be meetings between the parties’ lawyers during the course of the day to deal with evidential and legal issues. It is always key to have as much information as possible about assets, values and legal costs available during the process. Draft estate or trust accounts and asset valuations will usually form part of the documents which assist the parties in translating the discussions into financial offers. As a general rule, the sooner the parties get into making offers, even if they are far apart, the more likely that the mediation can progress to settlement.

Since the Covid 19 Pandemic, many mediations have been taking place by video or Zoom meeting: these have proven to work well. The parties are in their respective virtual rooms, and the mediator moves between them, with any documents that need to be shared passing by emails or file sharing.

If a settlement is reached it then has to be documented, sometimes late into the evening so it often helps if the parties’ representatives have considered in advance a structure or wording which will achieve what the parties might agree. It is far preferable that if agreement is reached an agreement or draft Order is signed on the day: if the momentum towards settlement which builds on the day is lost, there is the possibility of parties changing their minds.

Even if there is no settlement mediation frequently provides a springboard for further discussions, and settlement can sometimes happen in the following days, the parties having perhaps narrowed the issues between them, or gained a better understanding of the case against them and made offers. In that scenario the parties can agree to extend the confidential and without prejudice “veil” of the mediation to continue their discussions, and they may agree to ask the mediator to remain involved in the ongoing discussions if appropriate.

Mediation, in short has become an invaluable tool in resolving contentious probate disputes and provides a forum where we can assist clients to achieve a good result while avoiding the stress and cost inherent in litigation.