Why does Mediation continue to be so popular for resolving Contentious Probate disputes?

Contentious probate disputes are not only emotionally draining but often constitute a significant financial investment, with no guarantee of a successful outcome. Whether it is an executor removal claim, a will validity challenge or a claim under the Inheritance (Provision for Family and Dependants) Act 1975, it can take many months, if not years, to reach a final hearing before a Judge, who may not ultimately rule in your favour. The result is that navigating these disputes can be extremely stressful, costly and risky.

Accordingly, over recent years mediation has become increasingly common as a way of resolving these types of disputes. Mediation is a confidential, without-prejudice form of Alternative Dispute Resolution (“ADR”) in which an independent mediator assists the parties in negotiating a mutually acceptable settlement without the need for court involvement. In fact, following the recent decision in Churchill v Merthyr Tydfil County Borough Council [2023], it is now within the Court’s power to order parties to mediate a dispute. The courts have also been increasingly clear that an unreasonable refusal to mediate could result in adverse costs consequences and that mediation and other forms of ADR should be explored before a matter proceeds to trial.

So, why is mediation so effective and encouraged so proactively by the Courts? In summary, there are three key reasons why it works so well for contentious probate disputes:

1. Cost

It is significantly more cost-effective to resolve a matter through mediation than to proceed all the way to trial. In many cases, a fully litigated dispute will incur tens, if not hundreds, of thousands of pounds in legal costs for each party by the time of a final hearing.

Costs at this level are not only unsustainable and unaffordable for many people but can also quickly become disproportionate to the size of the estate or the value of the dispute itself, making mediation a very attractive and highly appropriate form of ADR.

2. Speed

Mediations can be agreed and arranged quickly, often taking place within a matter of months of the parties agreeing to mediate and selecting a mediator. They can occur at any stage of a dispute, whether pre-action (before a claim has been issued) or during active court proceedings.

This can result in a much quicker and more efficient resolution when compared with average court timescales, which commonly exceed 18 to 24 months from the issue of proceedings to a final trial. This is particularly important when navigating emotionally charged disputes, often at a time when families are grieving. Mediation can provide a swift resolution, helping to limit some of the emotional burden and stress from those involved.

3. Flexibility

The outcome of a mediation, usually recorded in a Settlement Agreement, is entirely flexible in terms of its structure, form and timescales involved. The parties can tailor the settlement to their specific needs and objectives and are not constrained by the legal remedies and procedural limitations that would apply to a Judge determining the dispute at trial.

Mediation also provides a more comfortable and less confrontational environment for resolving disputes. Parties sit in separate rooms, with the mediator moving between the rooms throughout the day, meaning they do not have to sit face-to-face with the opposing party. This is particularly beneficial in contentious probate disputes where family relationships have often broken down and emotions are running high.

This flexibility allows for emotions, family relationships, and the factual background to be considered when agreeing a framework for resolution at a mediation and enabling the outcome to tailored to the circumstances and family dynamics of that specific case. The fact that parties also do not meet and sit in different rooms can remove a significant source of anxiety and conflict, increasing the likelihood of the mediation being successful and aiding in negotiating a settlement.

Conclusion

In short, mediation continues to be an effective and increasingly popular method of resolving contentious probate disputes. Not only is it actively encouraged by the Courts, but it also provides an invaluable forum in which parties can resolve emotionally charged and factually complex disputes in a cost-effective, proportionate and flexible manner.

If you would like to discuss mediation and ADR further, please contact Emma Shepherd at emma.shepherd@fsp-law.com or on 0118 9516258.