Can mediation help to resolve a probate dispute over a will, an intestacy or an inheritance claim?

What is Mediation?

  • It is a consensual process, which uses an impartial individual (the mediator) who will encourage the parties to discuss the issues in dispute, which should lead to negotiations between the parties and ultimately a resolution to the dispute.  The process, is not as yet, a mandatory part of the litigation timetable.
  • Either party can propose mediation, at any stage of the proceedings (or prior to the commencement of legal proceedings if the parties agree). However both parties must be willing to attend, they cannot be forced to attend the mediation. The courts are very much in favour of mediation and the Civil Procedure Rules, which govern litigation, are biased towards litigating parties considering all forms of ADR, although the court cannot order the parties to attend mediation. The court can however, encourage the parties to attend some form of Alternative Dispute Resolution. If parties refuse to do so, at various points throughout the litigation process, the party will have to explain to the court, in a witness statement why they consider that they should not attend.  The risk of not attending is that the court will consider that a party is unreasonable if it does not attend.  This can mean a costs sanction for the offending party.
  • The Protocol Practice Direction states:

“Starting proceedings should usually be a step of last resort, and proceedings should not normally be started when a settlement is still actively being explored.  Although ADR is not compulsory, the parties should consider whether some form of ADR procedure might enable them to settle the matter without starting proceedings.”

  • The mediator is not a judge and therefore cannot give an opinion on the dispute. Mediators are often solicitors, barristers, accountants, surveyors or other professionals. Unlike court proceedings, the mediator will not make an order or a ruling at the end of the mediation as to which party he thinks has the strongest case. The mediator is unbiased and is primarily a facilitator, his aim is to guide and encourage the parties to talk to one another and to work through the issues in dispute to see whether it is possible to reach an amicable settlement or resolution.
  • There are several organisations, which provide mediation services.  We have used CEDR, NDR, ANM and ADR. The organisations usually will provide detailed CV’s of approximately three suitable mediators for the parties to consider and select. The appointment of the mediator is something, which is agreed between the parties. The parties usually decide to appoint a mediator who they feel has the most appropriate experience and background.
  • At Ward Hadaway, three of our partners are accredited mediators and therefore have substantial experience of the process. Namely Paula Myers (Commercial Litigation), Tim Toomey (Commercial Litigation) and Ralph Wrighton (Construction).
  • Once the parties have an agreed on who should be appointed as mediator, the parties sign an agreement which confirms that they agree to attend the mediation. The agreement also lists the names of the parties who are attending the mediation and confirms the date and location which is also something that needs to be agreed.
  • The parties will provide the mediator with copies of the important documents in the case, copies of the statements of case if proceedings have been issued, a chronology and a case summary which highlights the issues in dispute. Mediators often ask the parties to limit the amount of documentation to one A4 file of papers of possible.
  • The parties have to agree on a venue for the mediation to be held. This is usually a neutral venue such as a hotel or a conference suite, or alternatively solicitors offices can be used. The venue must have 3 separate rooms, one private room for each of the parties and a room for the mediator which also holds the joint sessions between the parties or any lawyers only sessions to explore and discuss matters.

How does mediation work? What is the procedure?

Opening session

  • At the start of the mediation, the mediator, the parties and their representatives meet in the joint meeting room. The mediator will introduce the parties and himself and will explain a number of practical points for the day i.e. where the rooms and facilities are, how the process is consensual and is both confidential and without prejudice. The mediator will also explain how the mediation process works and how joint sessions and a number of private sessions with the parties will take place throughout the day. In the private sessions the mediator will explore the issues in dispute and talk to the parties about the strength of their case and the likely costs consequences of not being able to reach a resolution.
  • It is crucial that the parties attending the mediation have full authority to settle the dispute, as the ultimate aim of the mediation is to reach an amicable resolution, which will result in a written, binding agreement being signed on the day. It is therefore important to ensure that the parties attending the mediation are authorised to make a decision regarding the settlement of the case.
  • Each party will the give a short presentation of its case.  The purpose of the opening session is to enable the parties to meet face to face which may in some cases be the first time that the parties have met since the commencement of the dispute.
  • The opening session usually lasts between 30 minutes to an hour. Once the parties have presented their case summaries, the parties will retire to their private rooms. The mediator will then spend time with each party in their private rooms, these sessions are called “caucus” periods.
  • The private sessions are very useful as they allow the mediator to build a rapport with the parties and to explore the issues in the dispute. It is usual for the mediator in those sessions to discuss at length what will happen if a settlement is not reached. The discussions will focus on the costs and the risks of the litigation proceedings and whether a commercial or personal relationship can continue after the dispute.
  • Approximately 90% of cases are resolved without having to proceed to trial. Mediation is extremely successful at achieving a resolution to disputes. If however, a case does not settle at mediation, it is still possible to resolve the matter before trial as the mediation process may have enabled both parties to explore issues and can narrow the issues in dispute. Some disputes do not settle on the day of the mediation but are resolved a few days or weeks afterwards, once parties have had time to reflect on the dispute.

Are all cases suitable for mediation?

  • Most cases are suitable for mediation, however the process is aimed at offering a quicker and more cost effective resolution of the dispute, avoiding what can be substantial trial costs.  The timing of mediation is important as it needs to be sufficiently early to justify the costs savings of the exercise, but not too early so that the parties are still considering the evidence and merits of their case.
  • Mediation should always be considered where:
    • The costs of the litigation will be disproportionate to the claim;
    • The complexities of law and/or fact are likely to protract proceedings;
    • The parties are already deadlocked in settlement negotiations;
    • The issues involved are sensitive or require the disclosure of sensitive evidence and the parties wish to retain anonymity.
    • Where one party is suggesting mediation, the other party must give serious consideration to this proposal. Recent caselaw suggests that a party who is unwilling to participate in mediation is likely to face significant costs consequences and penalties, even if they proceed to trial and win their case.
  • Mediation is not suitable where:
    • There is an important point of law to be tested by the courts and a commercial or legal precedent needs to be set;
    • Summary judgment or an application to strike out is more appropriate;
    • The parties require emergency injunctive or protective relief;
    • Settlement discussions are successfully progressing;

Advantages of Mediation?

  • The parties are able to reach a resolution themselves, as opposed to having a decision imposed on them by a judge at trial. This can often include a settlement on peripheral matters that are important to the parties but are not the focus of the litigation proceedings.
  • It strives to achieve a “win, win” result which is usually not possible with litigation.
  • Parties are given the opportunity to “have their say” which is prevented in a trial environment as the parties are constrained by the laws of evidence and court etiquette.
  • A resolution can save unnecessary legal costs.
  • Commercial relationships can be saved which is also unlikely after a contested trial.

How much does Mediation cost?

  • The costs of the mediator range from approximately £2000 – £4000 plus VAT per day. Travel expenses, room hire and refreshments will also need to be added to the overall costs. The costs are usually split equally between the parties.
  • The mediator’s costs are also often paid for before in advance of the mediation.
  • The parties will also have to bear the legal costs for their solicitor to prepare for and attend the mediation. There is a substantial amount of preparation work that needs to be carried out in readiness for the mediation and to ensure that it has the best possible chance of succeeding, such as preparing a position statement, mediation bundle and a confidential briefing for the mediator.
  • Each party will also have to ensure that they are available for the full day and are not time constrained as this could damage the progress of the negotiations. Mediations can be time consuming and last into the evening, it is therefore essential that parties are aware of that and prepared to stay as long as is necessary to try and resolve the issues in dispute.